[Federal Register Volume 87, Number 246 (Friday, December 23, 2022)]
[Proposed Rules]
[Pages 79176-79212]
[FR Doc No: 2022-27557]

Vol. 87

Friday,

No. 246

December 23, 2022

Part III

 Environmental Protection Agency

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40 CFR Part 60

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

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

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 60

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

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

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

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

FOR FURTHER INFORMATION CONTACT: For questions about this proposed
action, contact Dr. Michelle Bergin, Sector Policies and Programs
Division (Mail Code D205-01), Office of Air Quality Planning and
Standards, U.S. Environmental Protection Agency, Research Triangle
Park, North Carolina 27711; telephone number:<PHONE_NUMBER>; fax
number:<PHONE_NUMBER>; and email address: [email protected].

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

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

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

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

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

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

I. General Information

A. Does this action apply to me?

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

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

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

II. Background

A. What is the statutory authority for this action?

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

B. What is the background for this action?

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

Administrator's] judgment it causes, or contributes significantly to,
air pollution which may reasonably be anticipated to endanger public
health or welfare.'' Once a source category is listed, CAA section
111(b)(1)(B) requires that the EPA propose and then promulgate
``standards of performance'' for new sources in such source category.
CAA section 111(a)(1) defines a ``standard of performance'' as ``a
standard for emissions of air pollutants which reflects the degree of
emission limitation achievable through the application of the best
system of emission reduction which (taking into account the cost of
achieving such reduction and any non-air quality health and
environmental impact and energy requirements) the Administrator
determines has been adequately demonstrated.'' This provision requires
the EPA to determine both the best system of emission reduction (BSER)
for the regulated source category and the degree of emission limitation
achievable through application of the BSER. The EPA must then, under
CAA section 111(b)(1)(B), promulgate standards of performance for new
sources that reflect that level of stringency.
    Once the EPA promulgates standards of performance for new sources
within a particular source category, the EPA is required, in certain
circumstances, to regulate emissions from designated (existing)
facilities in that same source category.\1\ Under CAA section 111(d),
the Agency has, to date, issued EGs regulating five pollutants from six
source categories that remain in effect (i.e., sulfuric acid plants
(acid mist), phosphate fertilizer plants (fluorides), primary aluminum
plants (fluorides), kraft pulp plants (total reduced sulfur), municipal
solid waste landfills (landfill gases)), and fossil-fuel fired electric
generating units (carbon dioxide). See ``Phosphate Fertilizer Plants;
Final Guideline Document Availability,'' 42 FR 12022 (March 1, 1977);
``Standards of Performance for New Stationary Sources; Emission
Guideline for Sulfuric Acid Mist,'' 42 FR 55796 (October 18, 1977);
``Kraft Pulp Mills, Notice of Availability of Final Guideline
Document,'' 44 FR 29828 (May 22, 1979); ``Primary Aluminum Plants;
Availability of Final Guideline Document,'' 45 FR 26294 (April 17,
1980); ``Emission Guidelines and Compliance Times for Municipal Solid
Waste Landfills,'' 81 FR 59276 (August 29, 2016); ``Repeal of the Clean
Power Plan; Emission Guidelines for Greenhouse Gas Emissions From
Existing Electric Utility Generating Units; Revisions to Emission
Guidelines Implementing Regulations,'' 84 FR 32520 (July 8, 2019)
(Affordable Clean Energy (ACE) Rule).2 3 On November 15,
2021, the EPA proposed EGs to regulate greenhouse gas emissions (in the
form of methane limitations) from sources in the oil and natural gas
industry. 86 FR 63110. In addition, the Agency has regulated additional
pollutants for solid waste incineration units under CAA section 129 in
accordance with CAA section 111(d).\4\
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    \1\ In accordance with CAA section 111(d), states are required
to submit plans pursuant to these regulations to establish standards
of performance for existing sources for any air pollutant: (1) the
emission of which is subject to a Federal New Source Performance
Standard; and (2) which is neither a pollutant regulated under CAA
section 108(a) (i.e., criteria air pollutants such as ground-level
ozone and particulate matter, and their precursors, like volatile
organic compound) or a hazardous air pollutant regulated [from the
same source category] under CAA section 112. See also definition of
``designated pollutant'' in 40 CFR 60.21a(a).
    \2\ The EPA has also issued several EGs that have subsequently
been repealed or vacated by the courts. The EPA regulated mercury
from coal-fired electric power plants in a 2005 rule that was
vacated by the D.C. Circuit, ``Standards of Performance for New and
Existing Stationary Sources: Electric Utility Steam Generating
Units; Final Rule,'' 70 FR 28606 (May 18, 2005) (Clean Air Mercury
Rule), vacated by New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008).
The EPA also issued CAA section 111(d) EGs regulating GHG emissions
from fossil fuel-fired electric power plants in a 2015 rule ``Carbon
Pollution Emission Guidelines for Existing Stationary Sources:
Electric Utility Generating Units; Final Rule,'' 80 FR 64662
(October 23, 2015) (Clean Power Plan). The EPA subsequently repealed
and replaced the 2015 rule with the ACE Rule.
    \3\ The ACE Rule was initially vacated by Am. Lung Ass'n v. EPA,
985 F.3d 914 (D.C. Cir. 2021). The Supreme Court subsequently
reversed and remanded the D.C. Circuit's opinion, West Virginia v.
EPA, 142 S. Ct. 2587 (June 30, 2022). On October 27, 2022, the D.C.
Circuit amended its judgement and recalled the partial mandate
vacating the ACE Rule, effectively reinstating ACE. Order, ALA v.
EPA, No. 19-1140, ECF No. 1970895.
    \4\ CAA Section 129 directs the EPA Administrator to develop
regulations under CAA section 111 limiting emissions of nine air
pollutants from four categories of solid waste incineration units.
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    The mechanism for regulating designated facilities under CAA
section 111(d) differs from the mechanism for regulating new facilities
under CAA section 111(b). Pursuant CAA section 111(b), the EPA
promulgates standards of performance that are directly applicable to
new, modified, and reconstructed facilities in a specified source
category. In contrast, CAA section 111(d) operates together with CAA
section 111(a)(1) to collectively establish and define roles and
responsibilities for both the EPA and the states in the regulation of
designated facilities. Under the regulatory framework for designated
facilities, states are authorized to establish standards of
performance. However, such standards of performance must reflect the
degree of emission limitation achievable through the application of the
BSER \5\ that the EPA has determined for the designated facilities in
the source category. As with standards of performance under CAA section
111(b), the requirement for the EPA to determine the BSER derives from
the definition of ``standard of performance'' under CAA section
111(a)(1). Further, CAA section 111(d)(1) requires the EPA's
regulations to permit states, in applying a standard of performance to
particular sources, to take into account the source's remaining useful
life and other factors, a process addressed in more detail in section
III.E of this preamble.
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    \5\ In this proposal, the EPA is also referring to ``the degree
of emission limitation achievable through application of the BSER''
as the presumptive level of stringency.
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    The EPA addresses its obligation under CAA section 111(d) to
establish a procedure for states to submit plans both through its
promulgation of general implementing regulations for section 111(d) as
well as through promulgation of EGs for specific source categories.
While CAA section 111(d)(1) authorizes states to develop state plans
that establish standards of performance and provides states with
certain discretion in determining the appropriate standards, CAA
section 111(d)(2) provides the EPA a specific oversight role with
respect to such state plans. This latter provision authorizes the EPA
to prescribe a Federal plan for a state ``in cases where the state
fails to submit a satisfactory plan.'' The states must therefore submit
their plans to the EPA, and the EPA must evaluate each state plan to
determine whether each plan is ``satisfactory.'' If a state fails to
submit a plan or the EPA determines that a state plan is not
satisfactory, CAA section 111(d)(2) gives the EPA the ``same
authority'' to prescribe a Federal plan in such instances as it has to
promulgate a Federal Implementation Plan (FIP) under CAA section
110(c).
    In 1975, the EPA issued the first general implementing regulations
to prescribe the process for the adoption and submittal of state plans
for designated facilities under CAA section 111(d) (codified at 40 CFR
part 60, subpart B (subpart B)). 40 FR 53340 (November 17, 1975).
Responding to the direction to ``establish a procedure similar to that
provided by'' CAA section 110, in promulgating subpart B the EPA
aligned the timing requirements for state and Federal plans under CAA
section 111(d) with the then-applicable timeframes for State

Implementation Plans (SIPs) and FIPs prescribed in CAA section 110, as
established by the 1970 CAA Amendments. The implementing regulations
were not significantly revised after their original promulgation in
1975 \6\ until 2019, when the EPA promulgated a new set of implementing
regulations codified at 40 CFR part 60, subpart Ba. 84 FR 32520 (July
8, 2019) (subpart Ba).
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    \6\ In 2012, the EPA revised several provisions of subpart B,
mainly to include allowance systems as a form of an emission
standard. 77 FR 9303 (February 16, 2012).
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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 mirror changes to CAA section
110, given that section 111(d)(1) of the CAA directs the EPA to
``prescribe regulations which shall establish a procedure similar to
that provided by section 110'' of the CAA for states to submit plans to
the EPA. In promulgating subpart Ba, the EPA directly aligned the
timing requirements for CAA section 111(d) state and Federal plans (40
CFR 60.23a(a)(1) and 60.27a(c), respectively) with the timing
requirements for SIPs and FIPs under CAA section 110 (see CAA section
110(a)(1) and 110(c)(1), respectively).
    In promulgating subpart Ba, the EPA also added the definition of
``standard of performance'' (40 CFR 60.21a(f)) (defined under subpart B
as ``emission standard'' (40 CFR 60.21(f))) and the remaining useful
life provision (40 CFR 60.24a(e)) (referred under subpart B as the
variance provision (40 CFR 60.24(d))). The EPA further added required
minimum administrative and technical criteria for inclusion by state
plans (40 CFR 60.27a(g)). Applying these criteria, the EPA determines
whether a state plan or portion of a plan submitted is complete
(referred to as a completeness review). Once a state plan or portion of
a plan is determined to be complete, the EPA will approve or disapprove
the plan or portions of the plan. For details on the EPA's rationale
for the promulgation of these provisions see 84 FR 32520 (July 8,
2019).
    Subpart Ba is applicable to any final EG published or ongoing after
July 8, 2019. However, in this action, the EPA is proposing to amend
subpart Ba to be applicable only to any final EG published after July
8, 2019 (see section III.G.2.i of this preamble). This includes, if
finalized, the proposed EGs to regulate greenhouse gas emissions from
sources in the oil and natural gas industry, to the extent the final EG
does not contain EG-specific requirements superseding subpart Ba. 86 FR
63110, November 15, 2021. Subpart B (pre-2019) continues to apply to
EGs promulgated prior to July 8, 2019, and to EGs issued pursuant to
CAA section 129.
    In January 2021, the D.C. Circuit vacated several provisions of
subpart Ba, all of which relate to timelines for state plans and
Federal plans. Am. Lung Ass'n v. EPA, 985 F.3d 914, 991. (D.C. Cir.
2021) (ALA).\7\ In this vacatur, the court identified several flaws in
the EPA's rationale for extending CAA section 111(d) state and Federal
plan timelines. First, the court found that the EPA erred in adopting
the timelines for SIPs and FIPs in CAA section 110 without meaningfully
addressing the differences in the scale of effort required for
development and evaluation of CAA section 110 SIPs, as compared with
the scale of effort needed for CAA section 111(d) state plans. Id. at
992-93. The court also concluded that in promulgating the timelines in
subpart Ba, the EPA failed to justify why the shorter deadlines under
subpart B were unworkable. Id. at 993. Further, the court held that the
EPA was required to consider the effect of its subpart Ba timelines on
public health and welfare, consistent with the statutory purpose of CAA
section 111(d). In the court's view, the EPA's ``complete failure to
say anything at all about the public health and welfare implications of
the extended timeframes'' meant that the EPA failed to consider an
important aspect of the problem. Id. at 992 (citing Motor Vehicle Mfrs.
Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. 463 U.S. 29, 43
(1983)).
---------------------------------------------------------------------------

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

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

III. What actions are we proposing?

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

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

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

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

A. Revised Implementing Timelines

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

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

    The EPA acknowledges these deadlines are not identical to those for
SIPs under CAA section 110. This is consistent with the requirement of
CAA section 111(d) that the EPA to promulgate a procedure ``similar''
to that of CAA section 110, rather than an identical procedure. This is
also consistent with the ALA decision, which requires the EPA to
``engage meaningfully with the different scale'' of CAA section 111(d)
and 110 plans. Am. Lung Ass'n v. EPA, 985 F.3d 914, 993 (D.C. Cir.
2021). Accordingly, the EPA evaluated each step of the implementation
process to independently determine the appropriate duration of time to
accomplish the given step as part of the overall process, and the
timelines proposed in these implementing regulations represent what the
EPA has determined will be necessary for the implementation of most
EGs. An EG for a typical source category or pollutant, for which the
proposed timelines would be appropriate, might include: an inventory of
designated facilities; a well-defined BSER and presumptive level of
stringency so that states need to do little analytical work to
establish standards of performance; an EPA-provided model rule; and
state plan requirements that do not significantly deviate from these
general implementing regulations.
    The EPA recognizes that there may be EGs for pollutants or source
categories that require exceptions or accommodations to these general
requirements. Examples of circumstances that may require an exception
could include EGs that require states to perform extensive engineering
and/or economic analyses for their plan; EGs with an exceptional need
to expedite implementation (e.g., immediate impact for health and
welfare impacts); EGs that apply to an extraordinary number of
designated facilities; or EGs that are novel and/or unusually complex.
For situations like these, 40 CFR 60.20a(a)(1) provides that an EG may
supersede any aspect of the implementing regulations, including the
implementation timelines. It is within the EPA's discretion to
determine whether a proposed change in implementation time may be
justified within an individual EG based on these or other appropriate
factors. For EGs that supersede implementation timelines, the EPA is
proposing to require that the EPA both provide a justification for the
differing timelines and address how the change in timeline will impact
health and welfare. The EPA is not in this action seeking comment on
whether to supersede the presumptive subpart Ba timelines for any
particular EG.
1. State Plan Submission Timelines
    This section discusses the EPA's proposal for the duration of time
states will have to submit plans to the EPA following the publication
of a final EG. Under CAA section 111(d), it is first the EPA's
responsibility to establish a BSER and a presumptive level of
stringency via a promulgated EG. It is then each state's obligation to
submit a plan to the EPA which establishes standards of performance for
each designated facility. The EPA is proposing to require that each
state adopt and submit to the Administrator, within 15 months after
publication of a final EG, a plan for the control of the designated
pollutant(s) to which the EG applies.
    The implementing regulations promulgated under subpart B currently
provide that states have 9 months to submit a state plan after
publication of a final EG. 40 CFR 60.23(a)(1). In 2019, the EPA
promulgated subpart Ba and provided 3 years for states to submit plans,
consistent with the timelines provided for submission of SIPs pursuant
to CAA section 110(a)(1). This 3-year timeframe was vacated in the ALA
decision, and thus currently there is no applicable deadline for state
plan submissions required under EGs subject to subpart Ba. In
evaluating the appropriate timeline for plan submittal to replace the
vacated provision, the EPA reviewed steps that states need to carry out
to develop, adopt, and submit a state plan to the EPA, and its history
in implementing EGs under the timing provisions of subpart B. The EPA
further evaluated statutory deadlines, contents, and processes for
relatively comparable state plans under CAA section 129, and attainment
planning SIPs pursuant CAA sections 189(a)(2)(B) and 189(b)(2)) for the
2012 National Ambient Air Quality Standards (NAAQS) for fine
particulate matter (PM2.5). 78 FR 3085 (January 15, 2013).
    In developing a CAA section 111(d) state plan, a state must
consider multiple components in meeting applicable requirements.
Subpart Ba specifies the elements that must be included in a state plan
submission (see 40 CFR 60.24a, 60.25a, 60.26a) and certain processes
that a state plan must undergo in adopting and submitting a plan (see
40 CFR 60.23a). In addition to the requirements of these implementing
regulations, there are also state-specific processes applicable to the
development and adoption of a state plan. In particular, the component
that the EPA expects to take the most time and have the most
variability from state to state is the administrative process (e.g.,
through legislative processes, regulation, or permits) that establishes
standards of performance. State rulemaking usually involves several
phases, including providing notice that the agency is considering
adopting the rule; taking public comment; and approving or adopting the
final rule. The final process required to formally adopt a rule is
different in many states.\9\

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

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

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

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

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

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

    In the 2019 promulgation of subpart Ba, the EPA mirrored CAA
section 110 by giving states 3 years to submit plans. As previously
described, the court partly faulted the EPA for adopting the CAA
section 110 timelines without accounting for the differences in scale
and scope between CAA section 110 and 111(d) plans. The EPA has now
more closely evaluated the statutory deadlines and requirements in the
CAA section 110 implementation context to determine what is feasible
for a CAA section 111(d) state plan submission timeline. The EPA
specifically focused on statutory SIP submission deadline and
requirements in the context of attainment plans for the 2012
PM2.5 NAAQS under CAA section 189. CAA section 189(a)(2)(B)
requires states to submit attainment planning SIPs within 18 months
after an area is designated nonattainment. The 2012 PM2.5
NAAQS attainment plans were, in most cases, more complicated for states
to develop when compared to a typical plan under CAA sections 111(d).
For example, attainment plans require states to determine how to
control a variety of sources, based on extensive modeling and analyses,
in order to bring a nonattainment area into attainment of the NAAQS by
a specified attainment date. Under CAA section 111(d), it is clear
which designated facilities must be subject to a state plan, and the
standards of performance for these sources must reflect the level of
stringency determined by the EG unless a state chooses to account for
RULOF. As further described in section III.E of this preamble,
accounting for RULOF is expected to be a limited, rather than broadly
used, exception. The difference in complexity between the CAA section
189 plan requirements and the CAA section 111(d) plan requirements
suggests that a timeline shorter than 18 months is more appropriate for
development of CAA 111(d) state plans submissions.
    Thus, based on the EPA's evaluation of states' responsiveness to
previous CAA section 111(d) EGs, the contrast between the development
of CAA section 111(d) plans and CAA section 129 plans, and the relative
difference in complexity between attainment plan requirements under CAA
section 189 and CAA section 111(d) state plan requirements, the EPA is
proposing to require that state plans under CAA section 111(d) be due
15 months after publication of a final EG. This proposed timeframe is
substantially shorter than the 3 years deadline vacated by the D.C.
Circuit; however, the timeline should provide states adequate time to
adopt and submit approvable plans without extending the timing such
that significant adverse impacts to health and welfare are likely to
occur from the foregone emission reductions during the state planning
process. Allowing states sufficient time to develop feasible
implementation plans for their designated facilities that adequately
address public health and environmental objectives also ultimately
helps ensure more timely implementation of an EG, and therefore
achievement in actual emission reductions, than would an unattainable
deadline that may result in the failure of states to submit plans and
requiring the development and implementation a of Federal plan. The EPA
is soliciting comment on the proposed state plan submission timeline
and the analysis

supporting the EPA's proposed determination regarding the amount of
time reasonably necessary for plan development and submission. The EPA
is also soliciting comment on whether the EPA should consider any other
factors in setting this timeline (Comment A1-2).
    The EPA recognizes that the court, in ALA, faulted the Agency for
failing to consider the potential impacts to public health and welfare
associated with extending planning deadlines. The EPA does not
interpret the court's direction to require a quantitative measure of
impact, but rather consideration of the importance of the public health
and welfare goals when determining appropriate deadlines for
implementation of regulations under CAA section 111(d). Because 15
months is the generally expeditious period of time in which the EPA
finds that most states can create and submit a plan per the EPA's
corresponding emission guidelines that is both comprehensive and
legally sound, it follows that the EPA has appropriately considered the
potential impacts to public health and welfare associated with this
extension of time by providing no more time than the states reasonably
need to ensure a plan is comprehensive and timely. To the extent the
EPA considers deviating from these expeditious timeframes in
promulgating an EG in the future, the EPA will consider the public
health and welfare impacts associated with the change, consistent with
the court's direction in ALA, particularly where the EPA is providing
additional time for state plan development.
    While the EPA is proposing and soliciting comment on all components
of the implementation timelines proposed in this action, the EPA is
especially interested in comments regarding the proposed state plan
submission timeline. The EPA acknowledges that there are a number of
individual state-specific factors that can affect the amount of time
required for the development and submission of state plans. The EPA is
therefore soliciting specific comments on details of state plan
development and adoption processes and how those should inform a state
plan submission deadline, including whether there are reasons why the
EPA should consider either a longer or a shorter timeframe (Comment A1-
3).
    As discussed in section III.C of this preamble below, the EPA is
proposing to revise subpart Ba to include a requirement for states to
undertake outreach and meaningful engagement with pertinent
stakeholders as part of the state plan development process. The EPA
solicits comment on how much, if any, time this additional engagement
will take in the state plan development process (Comment A1-4). The EPA
recognizes that the time needed to conduct meaningful engagement will
be highly dependent on the number and location of designated facilities
addressed by an EG, as well as on the type of health or environmental
impacts of the associated emissions. If stakeholder and public
involvement required by the proposed amendments does not generate a
large number of specific and unique comments, data, or other
considerations, then the level of effort states will employ to review
them will be lower in comparison to when meaningful engagement comments
are voluminous. Also, to the extent that states already employ
significant engagement with pertinent stakeholders, the proposed
meaningful engagement amendments would not result in additional costs,
while other states that do not have engagement procedures already in
place may be required to increase their level of effort to engage with
pertinent stakeholders.
    In section III.E of this preamble, the EPA is also proposing
revisions to the RULOF provision. These proposed revisions would
clarify the procedures for considering RULOF by establishing a robust
analytical framework that would require a state to provide a sufficient
justification when applying a standard of performance that is less
stringent than the EPA's presumptive level of stringency, thereby
allowing the EPA to readily determine if the state's plan is
satisfactory and therefore approvable. The proposed state plan
submission timeline of 15 months should adequately provide time for
states to conduct the analyses required by this provision; however, the
EPA is soliciting comment on whether states will need additional time
in the plan development to account for instances where RULOF is
considered. The EPA is specifically requesting comment on how much
additional time might be required for this consideration and how that
additional time fits within the entire process of state plan
development (Comment A1-5).
    The proposed state plan submission timeline should be generally
achievable by states. The EPA notes it is obligated to promulgate a
Federal plan for states that have not submitted a plan by the
submission deadline. Once the obligation to promulgate a Federal plan
is triggered, it can only be tolled by the EPA's approval of a state
plan. If a Federal plan is promulgated, a state may still submit a plan
to replace the Federal plan. A Federal plan under CAA section 111(d) is
a means to ensure timely implementation of EGs, and a state may choose
to accept a Federal plan for their sources rather than submit a state
plan. While the EPA encourages states to timely submit plans for EGs,
there are no sanctions associated with failing to timely submit an
approvable plan or with the implementation of a Federal plan.\12\
---------------------------------------------------------------------------

    \12\ CAA section 179 provides that sanctions should be applied
in states that fail to submit approvable SIPs for certain specified
requirements for NAAQS implementation. The EPA has not promulgated
any similar sanctions provisions governing the submission of state
plans pursuant to section 111(d).
---------------------------------------------------------------------------

2. Timeline for the EPA To Determine Completeness of State Plans
    Once a state plan has been submitted to the EPA, the EPA reviews
the plan for ``completeness'' to determine whether the plan includes
certain elements necessary to ensure that the EPA can substantively
evaluate the plan. The EPA determines completeness by comparing the
state's submission against the administrative and technical criteria
specified in subpart Ba to see if the submission contains the elements
specified therein (see 40 CFR 60.27a(g) for completeness criteria). In
the 2019 promulgation of subpart Ba, the timeline provided for the EPA
to determine the completeness of a state plan mirrored the language in
CAA section 110(k)(1)(B): ``Within 60 days of the Administrator's
receipt of a plan or plan revision, but no later than 6 months after
the date, if any, by which a State is required to submit the plan or
revision, the Administrator shall determine whether the minimum
criteria [for completeness] have been met.''
    After a state plan is complete through either an affirmative
determination or by operation of law, the EPA will act on the state
plan submission through notice-and-comment rulemaking. The proposed
timeline for the EPA to act on a state plan submission can be found in
section III.A.3 of this preamble below.
    If a state plan submission does not contain the elements required
by the completeness criteria, the EPA would find that the state has
failed to submit a complete plan and notify the state through a letter.
The determination of incompleteness treats the state as if the state
has made no submission at all. The determination that a submission is
incomplete and that the state has failed to submit a plan is
ministerial in nature and requires no exercise of discretion or
judgment on the Agency's part.
    As part of the EPA's overall effort to set implementation timelines
under

CAA section 111(d) that are as expeditious as possible, the EPA is
proposing to revise the timing element of the completeness review in
subpart Ba. In light of the ministerial nature of the completeness
determination, the EPA proposes to provide a maximum of 60 days from
receipt of the state plan submission for the EPA to make a
determination of completeness. The EPA is additionally proposing to
provide that any state plan or plan revision submitted to the EPA that
has not received a completeness determination within 60 days of
receipt, shall on that date be deemed, by operation of law, to meet the
completeness criteria, which will trigger the EPA's obligation to take
substantive action on the state plan. Sixty days provides an
expeditious timeframe for the EPA to evaluate state plans for
completeness and to notify the states of the determination. Because the
EPA may be required to evaluate up to 50 state plans during this
period, in addition to plans submitted by territories, tribes and local
governments, the EPA does not find that this timeframe could reasonably
be shortened any further. The EPA is soliciting comment on the
appropriateness of providing a 60-day timeline for the EPA to conclude
its completeness review (Comment A2-1).
    The EPA notes that, because the EPA's finding of a plan as
incomplete puts a state in the legal status of not having submitted a
plan at all, the status and potential delinquency of a state's plan is
evaluated against the state plan submission deadline. If the EPA
determines that a plan is incomplete and this occurs at some point
after the state plan submission deadline, the EPA treats the state as
if the state has made no submission at all and thus the EPA's authority
to provide a Federal plan is triggered. If a state submits a plan prior
to the state plan submission deadline and the EPA also makes a
determination that the plan is incomplete prior to the state plan
submission deadline, the EPA will treat the state as if the state has
made no submission at all, but this determination does not yet trigger
further action by the EPA. Instead, because the state still has an
opportunity to submit a complete plan before the state plan submission
deadline, the EPA's authority to promulgate a Federal plan is only
triggered if the state fails to timely submit a new plan to replace the
incomplete plan by the state plan deadline.
3. Timeline for the EPA's Action on State Plans
    After a state plan has been determined to be complete or is deemed
complete by operation of law, the EPA must evaluate and determine
whether the plan or plan revision is approvable, in part or in whole
(see section III.D.1 of this preamble for discussion on proposed
partial plan approvals). In order to determine whether it is
appropriate to approve or disapprove a state plan, CAA section 111(d)
provides that the EPA must evaluate whether the plan is
``satisfactory,'' that is, whether the components of the plan meet all
the requirements of the statute, these implementing regulations, and
the corresponding EG, through a proposed notice-and-comment rulemaking.
After the EPA reviews comments on the proposed action, the EPA will
finalize its action to approve or disapprove the plan. If the EPA
approves a state plan, the standards of performance and other
components of that state plan become federally enforceable. If the
state plan is disapproved, in part or in whole, the EPA is obligated to
promulgate a Federal plan for designated facilities within that state
(see section III.A.4 of this preamble below for the EPA's timeline to
publish a Federal plan).
    Subpart B requires the EPA to take action on applicable state plans
(e.g., approve or disapprove) within 4 months after the date required
for submission. 40 CFR 60.27(b). In the development of subpart Ba, the
EPA contended that 4 months was an inadequate time to review and take
action on state plans and therefore instead provided a deadline of 12
months for final action on a state plan (mirroring the maximum time
permitted under CAA section 110(k)(1)(2) for the EPA's action on
complete SIPs). 84 FR 32520, July 8, 2019. In the ALA decision, the
D.C. Circuit vacated this revised timeline in subpart Ba on the basis
that the EPA did not adequately justify the extended timeframes and did
not consider the public health and welfare impacts of extending the
implementation times. As is discussed below, the EPA has now closely
evaluated the process, steps, and timeframes for the EPA to
substantively review and act upon each state plan submission through a
public notice-and-comment rulemaking process. After considering the
time anticipated to be necessary for generally expeditious EPA action
on state plans, the EPA is again proposing to require that it must take
final action on a state plan or plan revision submission within 12
months after a plan is determined to be complete or becomes complete by
operation of law.\13\
---------------------------------------------------------------------------

    \13\ The deadlines for the EPA action under subpart Ba would
apply to any state plan submission regardless of when it is
submitted.
---------------------------------------------------------------------------

    The first step of the EPA acting on a plan is that once a state
plan submittal has been deemed ``complete'' under 40 CFR 60.27a(g), an
intra-agency workgroup reviews the plan components to determine whether
they conform to the applicable regulatory requirements. The workgroup
may require a broad range of expertise in legal, technical, and policy
areas, potentially including attorneys, engineers, scientists,
economists, air monitoring experts, health and welfare analysts, and/or
policy analysts from across a variety of EPA programs. After review and
coordination, the workgroup then develops recommendations for approval
or disapproval of each plan component and presents them to Agency
decision-makers for review. Once the Agency completes its internal
decision-making process, the workgroup proceeds to prepare a written
notice of proposed rulemaking. The notice of proposed rulemaking
contains the EPA's legal, policy, and technical bases for its proposed
action on a state plan submission, which must be thoroughly developed
and explained in writing to provide clear and concise information and
reasoning to support the public in understanding the Agency's decision
and the justification for that decision, and so that the public may
provide informed comments on the proposal. The EPA may further develop
technical support documents as record support for the proposal. The
draft proposed rulemaking and any record support then undergo a multi-
layered review process across EPA offices and levels of management
before being processed for signature. The process to evaluate the state
plan, draft a proposed action on a CAA section 111(d) state plan, and
get the proposed action edited, reviewed, and signed typically requires
a minimum of between 6 to 8 months to complete. The signed notice of
proposed rulemaking is then submitted for publication in the Federal
Register, which may require several weeks processing prior to
publication.
    The publication of the proposed rulemaking triggers the start of a
public comment period of at least 30 days with possible extension if
requested. Because of the types of sources and pollutants regulated
under CAA section 111(d), the EPA reasonably anticipates that many of
its proposed actions on state plans will garner significant public
interest from individuals, industry, states, and

environmental and public health advocates. After completion of the
comment period, the EPA then reviews all comments and determines
whether, based on any comment, it should alter its proposed action or
further augment the legal, policy, and technical rationales supporting
that action. Comments received on a proposed action may include
technical information that was not available to the EPA at the time of
proposal. In the event technical data are received as part of comments
on the proposed action, the EPA would then be required to review the
new data and evaluate whether and how it should affect the EPA's
proposed conclusions regarding the state plan. If a substantive comment
is raised that merits reconsideration of the EPA's proposed action, the
EPA may determine that it is necessary to revise and repropose its
action on the state plan or it may go to the state for more information
to help the Agency determine how to proceed.
    Once this review of comments is complete, the workgroup drafts and
presents updated recommendations for action for internal review and
consideration by Agency decision-makers. Once the Agency completes its
internal decision-making process, the workgroup then drafts a notice of
final rulemaking on the plan submission, which includes responses to
comments, any necessary record support, and may also include final
regulatory text. The draft final action is then reviewed by senior
management and other interested EPA offices within the Agency prior to
signature of the final rulemaking approving or disapproving, in whole
or in part, a state plan. It is reasonable to permit at least 4 to 7
months for evaluation of the comments received, any necessary technical
analysis, decision-making, and drafting and review of the final action.
    The duration of each step in this deliberative process varies. The
amount of time the EPA needs to review a state plan submission and the
time it needs to finalize a notice of proposed rulemaking, depends in
part on the plan's complexity and the nature of the technical, policy,
and legal issues that it implicates. For example, a state plan
submission that invokes RULOF for several designated facilities is more
complex and time consuming to review than a plan that simply
establishes standards of performance reflecting the presumptive level
of stringency for all sources. Similarly, the amount of time needed to
respond to comments and issue a final rulemaking depends in part on the
number and type of comments received on the EPA's proposed rulemaking.
Additionally, the EPA reasonably anticipates that it will be required
to review multiple plan submissions at a given time, and these phases
of review for a given plan are impacted by the EPA's review of other
state plan submissions, as the EPA will need to assure its review
across multiple plans and regional offices is consistent from a legal,
technical, and policy perspective.
    The EPA finds 12 months is a reasonably expeditious timeframe to
accommodate the EPA to act on a state plan or plan revision submission
and the considerations described above, while ensuring that an EG is
expeditiously implemented. The process and steps described above
highlight the fact that it would be unreasonable, if not impossible, to
accomplish all of the steps in a legally and technically sound manner
within a 4-month timeframe as required under subpart B. Particularly,
the EPA's proposed action has to be open for public comment for at
least 30 days, therefore the 4-month timeline provided in subpart B
only gives the EPA 3 months to do the substantive work of both the
proposed and final actions, including evaluating the state plan
submission, drafting preamble notices, responding to comments, and
developing record support at both the proposed and final action stages.
A 12-month timeframe after a plan is determined to be complete more
reasonably accommodates the process and steps described above.\14\
---------------------------------------------------------------------------

    \14\ While the EPA would have the discretion to act on a state's
submission more quickly than 12 months where specific circumstances
allow (e.g., where there are no public comments on the proposed
action), the EPA does not believe that it would be reasonably
possible to act significantly more quickly than 12 months in most
cases.
---------------------------------------------------------------------------

    The EPA recognizes that the court in ALA faulted the Agency for
failing to consider the potential impacts to public health and welfare
associated with extending planning deadlines. The EPA does not
interpret the court's direction to require a quantitative measure of
impact, but rather consideration of the importance of the public health
and welfare goals of CAA section 111(d) when determining appropriate
deadlines. Because 12 months is an adequate period of time in which the
EPA can both expeditiously act on a plan submission and ensure that its
action is technically and legally sound, it follows that the EPA has
appropriately considered the potential impacts to public health and
welfare associated with this extension of time by providing no more
time than the EPA reasonably needs to ensure a plan submission contains
appropriate and protective emission reduction measures. If the EPA does
not have adequate time to evaluate a state plan submission, its ability
to ensure the plan contains appropriate measures to satisfactorily
implement and enforce the standards necessary to comply with the EG may
be compromised, which would in turn compromise the EPA's ability to
ensure that the public health and welfare objectives of the EG are
satisfied.
    The EPA is soliciting comment regarding its rationale for proposing
a 12-month timeframe for the EPA's action on a complete state plan or
plan revision submission, including whether there are reasons that the
EPA should consider either a longer or a shorter timeframe (Comment A3-
1). The EPA notes that this timeframe for the EPA's action on complete
state plan submission would apply to any final EG regulating greenhouse
gas emissions from sources in the oil and natural gas industry. 86 FR
63110, November 15, 2021.
4. Timeline for the EPA To Promulgate a Federal Plan
    CAA section 111(d)(2) provides that the EPA has the same authority
to prescribe a Federal plan for a state that fails to submit a
satisfactory plan as it does for promulgating a FIP under CAA section
110(c). Accordingly, the EPA's obligation to promulgate a Federal plan
is triggered in three situations: where a state does not submit a plan
by the plan submission deadline; where the EPA determines a portion or
all of a state plan submission did not meet the completeness criteria
and the time period for state plan submission has elapsed and,
therefore, the state is treated as having not submitted a required
plan; and where the EPA disapproves a state's plan. 40 CFR 20.27a(c).
In the first two instances of triggering a Federal plan, the EPA is
proposing to require that its timeline to promulgate a Federal plan for
those states would begin the day after the state plan is due.\15\ In
the third instance, the

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

    \15\ The EPA has discretion to address its obligation to
promulgate a Federal plan in a variety of ways for states that do
not have an approved state plan. For example the EPA may initially
promulgate a single Federal plan that applies to all appropriate
states and then update that Federal plan as necessary to accommodate
the inclusion of other states that trigger the need for a Federal
plan in the future (e.g., a Federal plan that applies to states that
fail to submit a plan can be updated to include applicability for
states that later have a plan disapproved); or the EPA may
promulgate Federal plans each time its authority to do so has been
triggered (e.g., the EPA will promulgate a Federal plan for all
states that fail to submit a plan and another Federal plan for all
states that have their plan disapproved).
---------------------------------------------------------------------------

    The original implementing regulations in subpart B provided the EPA
with 6 months to promulgate a Federal plan once its obligation to do so
was triggered. 40 CFR 60.27(d). When the EPA promulgated subpart Ba in
2019, it concluded that this amount of time was insufficient and
consequently extended the time for the EPA to promulgate a Federal plan
to 24 months, mirroring the timeframe permitted for promulgation of a
FIP under CAA section 110. 84 FR 32520, July 8, 2019. In the ALA
decision, the D.C. Circuit vacated this revised timeline in subpart Ba
on the basis that the EPA did not adequately justify the extended
timeframe and did not consider the health and welfare impacts of
extending the implementation timeframe.
    In this action, the EPA reevaluated the process, steps, and
timeframes for the EPA to promulgate a Federal plan through a public
notice-and-comment rulemaking process.\16\ Based on this assessment as
presented below, the EPA is proposing to require that it promulgate a
Federal plan within 12 months after either the date required for
submission of a state plan (for states that fail to submit a complete
plan) or the date the EPA disapproves a state's plan. The EPA is also
proposing a change to the trigger for the EPA's obligation and timeline
to provide a Federal plan for states that do not submit a timely plan
and that discussion is found in section III.B of this preamble.
---------------------------------------------------------------------------

    \16\ The EPA reviewed the information available in 40 CFR part
62 associated with the promulgation of Federal Plans under CAA
section 111(d). The supporting information reviewed is available at
Docket ID No. EPA-HQ-OAR-2021-0527. Under the provisions of CAA
section 111 and subpart B, the EPA promulgated Federal plans for
municipal solid waste landfills EG 40 CFR part 60 subpart Cc
(Federal plan codified at 40 CFR part 62 subpart GGG) and municipal
solid waste landfills EG 40 CFR part 60 subpart Cf (Federal plan
codified at 40 CFR part 62 subpart OOO).
    The EPA also reviewed information available in 40 CFR part 62
associated with the promulgation of Federal Plans under CAA 129. The
supporting information reviewed is available at Docket ID No. EPA-
HQ-OAR-2021-0527. Under the provisions of CAA sections 111 and 129
and subpart B, the EPA has promulgated Federal plans for large
municipal waste combustors EG 40 CFR part 60 subpart Cb (Federal
plan codified at 40 CFR part 62 subpart FFF); small municipal waste
combustors EG 40 CFR part 60 subpart BBBB (Federal plan codified at
40 CFR part 62 subpart JJJ); hospital, medical, and infectious waste
incinerators EG 40 CFR part 60 subpart Ce (Federal plan codified at
40 CFR part 62 subpart HHH); commercial and industrial solid waste
incinerators EG 40 CFR part 60 subpart DDDD (Federal plan codified
at 40 CFR part 62 subpart III) and sewage sludge incinerators EG 40
CFR part 60 subpart MMMM (Federal plan codified at 40 CFR part 62
subpart LLL).
---------------------------------------------------------------------------

    A Federal plan must meet the requirements of CAA section 111(d) and
therefore contain the same components as a state plan, namely standards
of performance for designated facilities and measures that provide for
the implementation and enforcement of such standards. CAA section
111(d)(2)(B) also explicitly requires the EPA to consider RULOF in
promulgating a standard of performance under a Federal plan.
Additionally, Federal plans containing standards of performance are
subject to the procedural requirements of CAA section 307(d), such as
the requirements for proposed rulemaking and opportunity for public
hearing. CAA section 307(d)(1)(C). 40 CFR 60.27a implements these
various statutory requirements and contains general regulatory
requirements for the EPA's promulgation of a Federal plan. To meet
these applicable requirements, the process, and steps for the EPA to
promulgate a Federal plan is described in the following paragraphs.
    Once the EPA's obligation to promulgate a Federal plan is
triggered, the EPA establishes an intra-agency workgroup to develop the
rulemaking action to address that obligation. The workgroup first
develops recommendations for the components of the Federal plan to be
proposed, and on legal, policy, and technical rationales that support
the recommendations. These components are identified in subpart Ba as
well as in the corresponding EG and are generally the same as those
required for a state plan. One of these fundamental components is the
determination of standards of performance for designated facilities.
Based on the requirements of CAA sections 111(d) and 111(a)(1), these
standards must generally reflect the presumptive level of stringency
the EPA determines as part of the EG. Depending on the form of the
presumptive level of stringency given in a particular EG, the EPA may
need to do additional work to calculate standards of performance that
reflect this level of stringency. For example, an EG may provide the
presumptive level of stringency as numerical emission rates, which a
Federal plan could adopt as the requisite standards of performance.
However, if an EG provides the presumptive level of stringency in a
form other than numerical standards, the EPA may need to calculate
appropriate standards of performance in the context of a Federal plan.
Further, CAA section 111(d)(2) requires the EPA to consider RULOF for
sources in the source category in setting standards of performance as
part of a Federal plan which requires the EPA, at least, to identify
and evaluate the remaining useful lives, among other appropriate
factors, and accordingly establish corresponding standards of
performance. The development of a Federal plan may also necessitate a
determination of appropriate testing, monitoring, reporting, and
recordkeeping requirements to implement the standard if the EG does not
provide presumptive requirements to address those aspects of
implementation. Further, the EPA will need to consider associated
compliance times for designated facilities in circumstances where they
are not provided by an EG, or in cases where a standard of performance
is adjusted to account for RULOF. There may also be situations where
increments of progress are warranted, and the EPA will correspondingly
need to identify and determine the appropriate increments of progress.
The development of a Federal plan with these components will also
include the element of meaningful engagement, as being proposed in this
action and further described in section III.C of this preamble.
    Once the recommendations for each component are developed, the
workgroup presents them to Agency decision-makers for review. After the
Agency completes its internal decision-making process, the workgroup
proceeds to prepare a written notice of proposed rulemaking. The
proposal must include the following elements, as required by CAA
section 307(d)(3): the factual data on which the proposed rulemaking is
based; the methodology used in obtaining the data and in analyzing the
data; and the major legal interpretations and policy considerations
underlying the proposed rulemaking. These elements must be thoroughly
developed and explained in the proposal to meaningfully provide the
public adequate information to comment on the proposal. The EPA may
further develop a technical support document as record support for the
proposal.
    The draft proposed rulemaking and any record support are then
reviewed by the relevant EPA offices and processed for signature. The
signed notice of proposed rulemaking is then submitted for publication
in the Federal Register. To develop the proposed Federal plan
rulemaking, establish unique standards for RULOF, allow review of
materials by senior management, go through an interagency review
process and have the package signed typically requires a

minimum of between six to 9 months to complete.
    As previously noted, the EPA's promulgation of a Federal plan is
subject to the requirements of CAA section 307(d), which includes
providing the public with an opportunity to provide an oral
presentation at a public hearing. CAA section 307(d)(5). The Federal
Register Act requires the EPA to provide sufficient notice of a public
hearing, which (in the absence of a different time specifically
prescribed by the relevant Act of Congress) is satisfied if the EPA
provides at least 15 days' notice. 44 U.S.C. 1508. Section 307(d)(5) of
the CAA further provides that the EPA must keep the record for the
proposed action open for public comment for 30 days after any public
hearing for the submission of rebuttal and supplemental information.
Because the EPA reasonably expects to provide notice of the required
public hearing at the time its proposed action is published in the
Federal Register, in order to allow for both a 15-day notice of the
public hearing and a subsequent 30-day comment period on the open
record, the EPA should allow for at least 45 days for public comment on
the notice of proposed action.
    As with state plans, because of the types of sources and pollutants
regulated under CAA section 111(d), the EPA reasonably anticipates that
many of its proposed actions on a Federal plan will garner significant
public interest from individuals, industry, states, and environmental
and public health advocates. After completion of the comment period,
the EPA then reviews all comments and determines whether, based on any
comment, it should alter any components of the proposed Federal plan,
or further augment the legal, policy, and technical rationales
supporting that proposed action. Additionally, in the EPA's experience,
comments may include technical information that was not in front of the
Agency at the time of proposal. In the event technical data are
received as part of comments on the proposed action, the EPA would then
be required to review the new data and evaluate whether and how it
should affect the EPA's proposed Federal plan. If a substantive comment
is raised that merits reconsideration of any component in the proposed
Federal plan, the EPA would need to repropose the plan.
    Once this review of comments is complete, the workgroup drafts and
presents updated recommendations for internal review and decision
making. Once the Agency completes its internal decision-making process,
the workgroup then drafts a notice of final rulemaking, which includes
responses to comments and any necessary record support, and final
regulatory text as the Federal plan directly regulates certain
designated facilities. The draft final action is then reviewed by
relevant offices within the Agency prior to signature of the final rule
promulgating the Federal plan. The EPA typically anticipates that the
process of reviewing comments received, making corresponding changes to
the rulemaking, and promulgating the final Federal plan to be between 4
and 8 months.
    The duration of each step in this deliberative process varies. The
amount of time the EPA needs to develop, propose, and finalize a
Federal plan depends in part of the plan's complexity and the nature of
the technical, policy, and legal issues that it implicates. For
example, some states needing a Federal plan may have thousands, if not
hundreds of thousands, of designated facilities that the EPA will need
to establish standards of performance and implementation measures for,
while other Federal plans may be significantly smaller in scale.
Similarly, the amount of time needed to respond to comments and issue a
final rule depends in part on the number and type of comments received
on the EPA's proposed rulemaking. Additionally, the EPA reasonably
anticipates that it may need to promulgate a Federal plan for multiple
states at a given time, which can amplify the amount of time and work
needed.
    The EPA has determined that 12 months reasonably accommodates the
amount of time that the EPA needs to undertake the process, steps, and
the considerations described above, while ensuring that an EG is
expeditiously implemented. The process and steps described above that
must be taken in promulgating a Federal plan highlight the fact that it
would be unreasonable, if not an impossibility, to accomplish all of
the steps in a legally and technically sound manner within a 6-month
timeframe as required under subpart B.\17\
---------------------------------------------------------------------------

    \17\ While the EPA would have the discretion to promulgate a
Federal plan more quickly than 12 months where specific
circumstances allow (e.g., where there are no public comments on the
proposed action), the EPA does not believe that would be reasonably
possible to act significantly more quickly than 12 months in most
cases.
---------------------------------------------------------------------------

    As with the EPA's proposal for its timeline to act on state plan
submissions, 12 months is generally the period of time in which the EPA
can both expeditiously act on a plan submission and ensure it is
technically and legally sound. Therefore, this extension of time
considers potential impacts to public health and welfare by giving the
EPA a reasonably expeditious timeframe to promulgate a Federal plan
that contains appropriate and protective emission reduction measures.
This is especially true in the context of a Federal plan, where there
is otherwise no state plan in place that is adequately protective of
public health and welfare. If the EPA does not have adequate time to
promulgate a Federal plan, its ability to ensure the plan contains
appropriate measures to satisfactorily implement and enforce the
standards necessary to comply with the EG may be compromised, which
would in turn compromise the EPA's ability to ensure that the public
health and welfare objectives of the EG are satisfied.
    The EPA is soliciting comment regarding its rationale for proposing
a 12-month timeframe for the EPA's promulgation of a Federal plan,
including whether there are reasons why the EPA should consider either
a longer or a shorter timeframe (Comment A4-1). The EPA notes that this
timeframe for the EPA's promulgation of a Federal plan would apply to
any final EG regulating greenhouse gas emissions from sources in the
oil and natural gas industry. 86 FR 63110, November 15, 2021.
    The EPA notes that a state may submit a plan to replace a Federal
plan, even after the state plan submission deadline. However, once the
EPA's authority and obligation to promulgate a Federal plan has been
triggered, the act of a state submitting a plan alone does not abrogate
the EPA's authority or obligatory timeline to promulgate a Federal
plan. Only an approved state plan can supplant an already promulgated
Federal plan or abrogate the EPA's responsibility to timely promulgate
a Federal plan. Where a state submits a late plan, that may have the
practical effect of concurrent timelines for promulgation of the
Federal plan and the EPA's action on that late state plan; the EPA is
not obligated to act on a late state plan prior to promulgating a
Federal plan (40 CFR 60.27a(d)).
5. Timeline for Increments of Progress
    As part of the EPA's statutory responsibility to determine the BSER
and related presumptive level of stringency, the EPA also determines in
an EG ``the time within which compliance with standards of performance
can be achieved.'' 40 CFR 60.22a(b)(5). As previously described, while
it is the states' responsibility to provide standards of performance,
those

standards of performance must reflect the presumptive level of
stringency, unless a state chooses to account for RULOF for a
particular source. Accordingly, states also have an obligation to
include the corresponding compliance schedules as part of their state
plans.\18\ Specifically the standards and compliance schedules ``shall
be no less stringent than the corresponding emission guideline'' (40
CFR 60.24a(c)) unless the RULOF provision is invoked (see section III.E
of this preamble for discussion of proposed revisions to this
provision). These compliance schedules are an integral component to
realizing the emission reductions required by an EG to address the
health and welfare impacts from a relevant source category and
pollutant. The sooner that the standards are implemented, the more
quickly the public health and welfare benefits of those reductions can
be achieved.
---------------------------------------------------------------------------

    \18\ ``Each plan shall include standards of performance and
compliance schedules.'' 40 CFR 60.24a(a).
---------------------------------------------------------------------------

    In the 1975 subpart B implementing regulations for CAA section
111(d), the EPA required that any compliance schedule extending more
than 12 months from the date required for submittal of the plan must
include legally enforceable increments of progress to achieve
compliance for each designated facility or category of facilities. 40
CFR 60.24(e). In the 2019 promulgation of subpart Ba, the EPA modified
this requirement to apply to any compliance schedule extending more
than 24 months from the state plan submittal deadline to align with the
extended timeline for state plan submissions. As discussed previously,
the D.C. Circuit vacated the extended implementation timelines in
subpart Ba, including the timeline for increments of progress.\19\
---------------------------------------------------------------------------

    \19\ Petitioners did not challenge, and the court did not
vacate, the substantive requirement for increments of progress.
---------------------------------------------------------------------------

    Both subparts B and Ba require that standards of performance are
implemented in a timely manner through provisions that require legally
enforceable increments of progress if the compliance schedule extends
beyond a specific time frame.\20\ In the definition of ``increments of
progress'', the EPA provides requirements for legally enforceable
increments of progress that states must include as a part of the
standard of performance for a given designated facility.\21\ The use of
increments of progress will vary from EG to EG based on the source
category and type of regulation. There are also situations that may
lead the EPA to limit or prohibit the use of increments of progress in
a particular EG based on the nature of the BSER and presumptive
standards, for example if the overall implementation timeline for a
particular EG is relatively short. The EPA may alternatively provide
presumptive increments of progress for a specific EG. The EPA will
address these circumstances as appropriate in a specific EG, if the
general requirements for increments of progress of subpart Ba need to
be superseded.
---------------------------------------------------------------------------

    \20\ Subpart Ba at 40 CFR 60.24a(a) and 60.24a(d), and subpart B
at 40 CFR 60.24(a) and 60.24(e)(1).
    \21\ 40 CFR 60.21a(h) defines ``increments of progress'' and
requires states to include the following steps: (1) Submittal of a
final control plan for the designated facility to the appropriate
air pollution control agency; (2) Awarding of contracts for emission
control systems or for process modifications, or issuance of orders
for the purchase of component parts to accomplish emission control
or process modification; (3) Initiation of on-site construction or
installation of emission control equipment or process change; (4)
Completion of on-site construction or installation of emission
control equipment or process change; and (5) Final compliance.
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    Because increments of progress are important to expeditiously
addressing public health and welfare, the EPA is proposing to generally
require that any compliance schedule extending more than 16 months from
the date required for submittal of a state plan must include legally
enforceable increments of progress to achieve compliance for each
designated facility or category of facilities. This proposed time
period accounts for the 60-day completeness review following a state
plan submittal and the 12-month period for the state plan review
proposed in this action, and further provides a 2-month buffer for the
case of a state plan approval by the EPA (approval occurring 14 months
after the plan submission deadline) before increments of progress are
required. While this time period of 16 months is longer than the 12
months previously provided under subpart B, it is significantly shorter
than the 24 months vacated from subpart Ba. Additionally, the time
between a state plan approval and the initiation of requirements for
increments of progress is less than both the 8 months previously
provided by subpart B and less than the 6-month buffer provided by the
vacated subpart Ba timeline. Providing a 2-month buffer after approval
of plans but before the increments of progress are required allows for
the owner or operators of designated facilities reasonable time to
initiate actions associated with the increments of progress before
these are required.
    This proposed timeline for increments of progress will ensure
standards of performance are implemented as expeditiously as possible
so that the intended emission reductions are achieved, and the public
health and welfare are protected. The EPA solicits comment on the
proposed requirement that CAA 111(d) plans include increments of
progress for any compliance schedule extending more than 16 months from
the state plan submission deadline, and whether a different timeline
for increments of progress should be considered. If another timeline is
considered, the EPA requests specific comments on why this other
timeline is more appropriate than 16 months (Comment A5-1).

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

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

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

C. Requirement for Outreach and Meaningful Engagement

    The fundamental purpose of CAA section 111 is to reduce emissions
from certain stationary sources that cause or significantly contribute
to air pollution which may reasonably be anticipated to endanger public
health or welfare. Therefore, a key consideration in the state's
development of a state plan, in any significant plan revision,\23\ and
in the EPA's development of a Federal plan pursuant to an EG
promulgated under CAA section 111(d) is the potential impact of the
proposed plan requirements on public health and welfare. A robust and
meaningful public participation process during plan development is
critical to ensuring that the full range of these impacts are
understood and considered.
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    \23\ Significant state plan revision includes, but is not
limited to, any revision to standards of performance or to measures
that provide for the implementation or enforcement of such
standards.
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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 is explicitly required pursuant to the applicable
regulations. The existing provisions in subpart Ba (40 CFR 60.23a(c)
through (f)) detail the public participation requirements associated
with the development of a state plan. Per these implementing
regulations, states must provide certain notice of, and conduct one or
more public hearings on, their state plan before such plan is adopted
and submitted to the EPA for review and action.\24\ However, robust and
meaningful public involvement in the development of a plan should
sometimes go beyond the minimum requirement to hold a public hearing
depending on who is most affected by and vulnerable to the impacts
being addressed by the plan. The CAA section 111(d) program addresses
existing

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

benefit the most from participating in a public hearing. For example,
data shows that as many as 30 million Americans do not have access to
broadband infrastructure that delivers even minimally sufficient
speeds, and that 25 percent of adults ages 65 and older report never
going online.\26\ Examples of prominent advertisement for a public
hearing, in addition to notice through the internet, may include notice
through newspapers, libraries, schools, hospitals, travel centers,
community centers, places of worship, gas stations, convenience stores,
casinos, smoke shops, Tribal Assistance for Needy Families offices,
Indian Health Services, clinics, and/or other community health and
social services as appropriate for the emission guideline addressed.
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    \25\ Consistent with this principle of providing reasonable
notice under the CAA, under programs other than CAA section 111(d),
the EPA similarly requires states to provide specific notice to an
area affected by a particular proposed action. See, e.g., 40 CFR
51.161(b)(1) requiring specific notice for an area affected by a
state or local agency's analysis of the effect on air quality in the
context of the New Source Review program; 40 CFR 51.102(d)(2), (4),
and (5) requiring specific notice for an area affected by a CAA
section 110 SIP submission.
    \26\ FACT SHEET: Biden-Harris Administration Mobilizes Resources
to Connect Tribal Nations to Reliable, High-Speed internet (December