the three following circumstances: unreasonable cost of control
resulting from plant age, location, or basic process design; physical
impossibility of installing necessary control equipment; or other
factors specific to the facility (or class of facilities) that make
application of a less stringent standard or final compliance time
significantly more reasonable. The implementing regulations also
specify that, absent such a demonstration, the state's standards of
performance must be ``no less stringent than the corresponding'' EG. 40
CFR 60.24a(c). This supplemental proposal largely retains the substance
of this threshold provision for purposes of EG OOOOc, including the
three circumstances under which a less stringent standard of
performance may be applied, and provide further clarification of what a
state must demonstrate in order to invoke RULOF when submitting a state
plan. Specifically, the EPA proposes to require the state to
demonstrate that a particular facility cannot reasonably achieve the
degree of emission limitation achievable through application of the
BSER, based on one or more of the three circumstances. The EPA is also
proposing to clarify the third circumstance by specifying that states
may apply a less stringent standard if factors specific to the facility
are fundamentally different than those considered by the EPA in
determining the BSER. Subsection a. describes the statutory and
regulatory background, and subsection b. explains the agency's
rationale for its proposal. Subsections c-h describe further proposed
additions to the RULOF provision in cases where states seek to apply a
standard that is less stringent than the degree of emission limitation
achievable through application of the BSER. These proposed additions
include requirements for the calculation of a less stringent standard,
contingency requirements in cases where an operating condition is the
basis for RULOF, and the consideration of disproportionately impacted
communities. Finally, subsection i. describes the proposal to address
cases where states seek to apply a more stringent standard.
a. Statutory and Regulatory Background
    The 1970 version of CAA section 111(d) made no reference to the
consideration of RULOF in the context of standards for existing
sources. In the 1975 regulations promulgating subpart B, however, the
EPA included a so-called variance provision. For health-based
pollutants, states could apply a standard of performance less stringent
than the EPA's EGs based on cost, physical impossibility, and other
factors specific to a designated facility that make the application of
a less stringent standard significantly more reasonable. 40 CFR
60.24(f). For welfare-based pollutants, states could apply a less
stringent standard by balancing the requirements of an EG ``against
other factors of public concern.'' 40 CFR 60.24(d). As part of the 1977
CAA amendments, Congress amended CAA section 111(d)(1) to require that
the EPA's regulations under this section ``shall permit the State in
applying a standard of performance to any particular source under a
plan submitted under this paragraph to take into consideration, among
other factors, the remaining useful life of the existing source to
which such standard applies.'' At the time, the EPA considered the
variance provision under subpart B to meet this requirement and did not
revise the provision subsequent to the 1977 CAA amendments until
promulgating new implementing regulations in 2019 under subpart Ba. As
part of the 2019 revisions, the EPA removed the health and welfare-
based pollutants distinction and collapsed the associated requirements
of the previous variance provision into a single, new RULOF provision
under 40 CFR 60.24a(e). 84 FR 32520, 32570. The D.C. Circuit vacated
several timing-related provisions under 40 CFR part 60, subpart Ba;
however, Petitioners did not challenge, and the court did not vacate,
the new RULOF provision under 40 CFR 60.24a(e). Am. Lung Assoc. v. EPA,
985 F.3d at 991 (D.C. Cir. 2021) (ALA).\257\
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    \257\ 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.
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b. Rationale for the Proposed Revisions
    As previously described, the statute expressly requires the EPA to
permit states to consider RULOF for a particular designated facility
when applying a standard of performance to that facility. The
consideration of remaining useful life in particular can be an
important consideration, as the cost of control for a specific
designated facility that is not expected to operate in the long term,
relative to other designated facilities in the source category, could
significantly vary from the average cost calculations done as part of
the BSER determination for the source category as a whole. In such an
instance, and in others as described throughout this section, a less
stringent standard may be more reasonable to

apply than a standard of performance that reflects the presumptive
level of stringency.
    In order to understand how states may have dealt with this issue in
their programs, the EPA examined several existing state oil and natural
gas regulations and programs. Based on our examination, we did not
identify any provision in any of the state oil and natural gas
regulations that included a less stringent standard for equipment or
operations with a shortened lifespan. The EPA is interested in
obtaining information on whether this situation exists in state oil and
natural gas rules that we may not have identified in our search. In
addition, the EPA is soliciting comment on situations where state rules
for industries other than the oil and natural gas industry include less
stringent requirements for sources that are soon to retire. If these
situations exist, the EPA is not only interested in the less stringent
requirements as they compare to the ``normal'' standards, but also how
the state evaluated the suitability of the less stringent requirements.
    As currently written, the RULOF provision in subpart Ba does not
provide clear parameters for states on how and when to apply a standard
less stringent than the presumptive level of stringency given in an EG
to a particular source. As written, the references to reasonableness in
this provision are potentially subject to widely differing
interpretations and inconsistent application among states developing
plans, and by the EPA in reviewing them. Without a clear analytical
framework for applying RULOF, the current provision may be used by
states to set less stringent standards that could effectively undermine
the overall presumptive level of stringency envisioned by the EPA's
BSER determination and render it meaningless.\258\ Such a result is
contrary to the overarching purpose of CAA section 111(d), which is
generally to require meaningful emission reductions from designated
facilities based on the BSER.
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    \258\ CAA section 111(d) does not require states to consider
RULOF, but rather requires that the EPA's regulations ``permit''
states to do so. In other words, the EPA must provide states with
the ability to account for RULOF, but states may instead choose to
establish a standard of performance that is the same as the
presumptive level of stringency set forth in the EGs. The
optionality, rather than mandate, for states to account for RULOF
supports the notion that this provision is not intended to undermine
the presumptive level of stringency in an EG for the source category
broadly. Additionally, the EPA notes that it is not aware of any CAA
section 111(d) EGs under which an EPA-approved state plan has
previously considered RULOF to apply a standard of performance that
deviates from the presumptive level of stringency. Clarifying
parameters may better enable states to effectively use this
provision in developing their state plans.
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    Additionally, while states have discretion to consider RULOF under
CAA section 111(d), it is the EPA's responsibility to determine whether
a state plan is ``satisfactory,'' \259\ which includes evaluating
whether RULOF was appropriately considered. The relevant dictionary
meaning of ``satisfactory'' is ``fulfilling all demands or
requirements.'' The American College Dictionary 1078 (C.L. Barnhart,
ed. 1970). Thus, the most reasonable interpretation of a ``satisfactory
plan'' is a CAA section 111(d) plan that meets the applicable
conditions or requirements, including those under the implementing
regulations that the EPA is directed to promulgate pursuant to CAA
section 111(d), including the provisions governing the application of
RULOF.\260\
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    \259\ CAA section 111(d)(2)(A) authorizes the EPA to promulgate
a Federal plan for any state that ``fails to submit a satisfactory
plan'' establishing standards of performance under CAA section
111(d)(1). Accordingly, the EPA interprets ``satisfactory'' as the
standard by which the EPA reviews state plan submissions.
    \260\ Although there is no case law specifically on the standard
of review of a CAA section 111(d)(1) state plan or the EPA's duty to
approve satisfactory plans, the EPA's action on a CAA section
111(d)(1) state plan is structurally identical to the EPA's action
on a state implementation plan (SIP). Under section 110(k)(3), EPA
must approve a SIP that meets all requirements of the Act. See Train
v. NRDC, 421 U.S. 60 (1975) (discussing the 1970 version of the
Act); Virginia v. EPA, 108 F.3d 1397, 1408-10 (D.C. Cir. 1995)
(discussing the 1970, 1977, and 1990 versions).
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    The EPA's determination of whether each plan is ``satisfactory'',
including the application of RULOF, must be generally consistent from
one plan to another. If the states do not have clear parameters for how
to consider RULOF when applying a standard of performance to a
designated facility, then they face the risk of submitting plans that
the EPA may not be able to consistently approve as satisfactory. For
example, under the current broadly structured provision, two states
could consider RULOF for two identically situated designated facilities
and apply completely different standards of performance on the basis of
the same factors. In this example, it may be difficult for the EPA to
substantiate finding both plans satisfactory in a consistent manner,
and the states and sources risk uncertainty as to whether each of the
differing standards of performance would be approvable. Accordingly,
providing a clear analytical framework for EG OOOOc for the invocation
of RULOF will provide regulatory certainty for states and the regulated
community as they seek to craft satisfactory plans that the EPA can
ultimately approve.
    For these reasons, the EPA is proposing the RULOF provision under
subpart OOOOc, consistent with the statutory construct and goals of CAA
section 111(d), in order to provide states and sources with clarity
regarding the requirements that apply to the development and
approvability of state plans that consider RULOF when applying a
standard of performance to a particular designated facility. Below, we
describe the guiding principles for the EPA's proposed revisions.
    CAA section 111(a)(1) requires that the EPA determine the BSER is
``adequately demonstrated'' for the regulated source category. In
determining whether a given system of emission reduction qualifies as
BSER, CAA section 111(a)(1) requires that the EPA take into account
``the cost of achieving such reduction and any non-air quality health
and environmental impact and energy requirements.'' The EPA's proposed
RULOF provision does so by tethering the states' RULOF demonstration to
the statutory factors the EPA considered in the BSER determination.
This is appropriate under the statute because the EPA will have
demonstrated that the BSER identified in EG OOOOc is ``adequately
demonstrated'' as achievable for sources broadly within the Crude Oil
and Natural Gas source category. Therefore, RULOF is appropriately
applied to permit states to address instances where the application of
the BSER factors to a particular designated facility is fundamentally
different than the determinations made to support the BSER and
presumptive level of stringency in the EG. For example, the D.C.
Circuit has stated that to be ``adequately demonstrated,'' the system
must be ``reasonably reliable, reasonably efficient, and . . .
reasonably expected to serve the interests of pollution control without
becoming exorbitantly costly in an economic or environmental way.''
Essex Chem. Corp. v. Ruckelshaus, 486 F.2d 427, 433 (D.C. Cir. 1973).
The court has further stated that the EPA may not adopt a standard in
evaluating cost that would be ``exorbitant,'' \261\ ``greater than the
industry could bear and survive,'' \262\ ``excessive,'' \263\ or
``unreasonable.'' \264\ These formulations use reasonableness

in light of the statutory factors as the standard in evaluating cost,
so that a control technology may be considered the ``best system of
emission reduction . . . adequately demonstrated'' if its costs are
reasonable (i.e., not exorbitant, excessive, or greater than the
industry can bear), but cannot be considered the BSER if its costs are
unreasonable. Similarly, in making the BSER determination, the EPA must
evaluate whether a system of emission reduction is ``adequately
demonstrated'' for the source category based on the physical
possibility and technical feasibility of control. Under this construct,
it naturally follows that most designated facilities within the source
category should be able to implement the BSER at a reasonable cost to
achieve the presumptive level of stringency, and RULOF will be
applicable only for a subset of sources for which implementing the BSER
would impose unreasonable costs or not be feasible due to unusual
circumstances that are not applicable to the broader source category
that the EPA considered when determining the BSER.\265\
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    \261\ Lignite Energy Council v. EPA, 198 F.3d 930, 933 (D.C.
Cir. 1999).
    \262\ Portland Cement Ass'n v. EPA, 513 F.2d 506, 508 (D.C. Cir.
1975).
    \263\ Sierra Club v. Costle, 657 F.2d 298, 343 (D.C. Cir. 1981).
    \264\ Ibid.
    \265\ This construct is also supported by CAA section 111(d) use
of the term ``establishing'' in directing states to create and set
standards of performance. As previously described, ``standard of
performance'' is defined under CAA section 111(a)(1) as reflecting
the degree of emission limitation achievable through application of
the BSER, which sets the initial parameters for development of the
standards of performance by states. The statute does not provide
that states may account for RULOF in ``establishing'' standards of
performance in the first instance, but permits states to do so in
``applying'' such standards to a particular source.
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    The RULOF provision we are proposing in this rule is consistent
with how the EPA has approached RULOF in the implementing regulations
previously. Subparts B and Ba both currently contain the same three
circumstances for when states may account for RULOF, and reasonableness
in light of the statutory criteria is an element of all three
circumstances. Under those subparts as currently written, states may
consider RULOF if they can demonstrate unreasonable cost of control,
physical impossibility of control, or other factors that make
application of a less stringent standard ``significantly more
reasonable.'' 40 CFR 60.24(f), 40 CFR 60.24a(e). The EPA's proposal for
EG OOOOc retains the first circumstance in whole and revises the second
one to add ``technical infeasibility'' of installing a control as a
situation where application of consideration of RULOF may be
appropriate. The proposal for EG OOOOc further clarifies the third
catch-all circumstance, which the first two circumstances also fall
under, by specifying that states may consider RULOF to apply a less
stringent standard if factors specific to a designated facility are
fundamentally different from the factors considered in the
determination of the BSER in EG OOOOc. The proposed third criteria
provides parameters for states and the EPA in developing and assessing
state plans, as this criterion was previously vague in the implementing
regulations and potentially open-ended as to the circumstances under
which states could consider RULOF.
    The ``fundamentally different'' standard, which undergirds all
three circumstances, is also consistent with other variance provisions
that courts have upheld for environmental statutes. For example, in
Weyerhaeuser Co. v. Costle, 590 F.2d 1011 (D.C. Cir. 1978), the D.C.
Circuit considered a regulatory provision promulgated under the Clean
Water Act (CWA) that permitted owners to seek a variance from the EPA's
national effluent limitation guidelines under CWA sections 301(b)(1)(A)
and 304(b)(1). The EPA's regulation permitted a variance where an
individual operator demonstrates a ``fundamental difference'' between a
CWA section 304(b)(1)(B) factor at its facility and the EPA's
regulatory findings about the factor ``on a national basis.'' Id. at
1039. The court upheld this standard as ensuring a meaningful
opportunity for an operator to seek dispensation from a limitation that
would demand more of the individual facility than of the industry
generally, but also noted that such a provision is not a license for
avoidance of the Act's strict pollution control requirements. Id. at
1035.
    For the reasons described in this section, the EPA is proposing
RULOF provisions for purposes of EG OOOOc by: (1) Including the
threshold requirements for consideration of RULOF; (2) adding
requirements for calculating a less stringent standard accounting for
RULOF; (3) adding requirements for consideration of communities most
affected by and vulnerable to the health and environmental impacts from
the designated facilities being addressed; and (4) adding requirements
for the types of information and evidence the states must provide to
support the invocation of RULOF in a state plan. The EPA solicits
comment on the proposed provisions described in the following
subsections, including the use of the BSER as a central tenet governing
the invocation of the RULOF provision.
    The EPA also solicits comment about whether, instead of
establishing firm requirements for the application of RULOF, the EPA
should instead consider establishing a framework, consistent with the
proposed requirements in the following discussion, pursuant to which
state plans would be considered presumptively approvable. In this
scenario, states would have certainty regarding what type of
demonstration the EPA would find satisfactory as they develop their
plans, but states could also submit an alternative RULOF demonstration
for the EPA's consideration. In the latter case, states would bear the
burden of proving to the EPA that they have proposed a satisfactory
alterative analysis and standard, considering all factors relevant to
addressing emissions from the source or sources at issue. The EPA also
solicits comment on what different approaches might be appropriate for
a state in applying RULOF to a particular source and that the EPA
should consider in determining whether to finalize the provisions
discussed below, either as requirements or as presumptions.
c. Threshold Requirements for Considering Remaining Useful Life and
Other Factors
    Under the existing RULOF provision in subpart Ba, 40 CFR 60.24a(e),
a state may only account for RULOF in applying a standard of
performance provided that it makes a demonstration based on one of
three criteria. These criteria are: (1) Unreasonable cost of control
resulting from plant age, location, or basic process design; (2)
physical impossibility of installing necessary control equipment; or
(3) other factors specific to the facility (or class of facilities)
that make application of a less stringent standard or final compliance
time significantly more reasonable. But the existing version of this
provision in subpart Ba provides no further guidance on what
constitutes reasonableness or unreasonableness for these
demonstrations. The EPA proposes this provision and clarifies it for
purposes of EG OOOOc to require that in order to account for RULOF in
applying a less stringent standard of performance to a designated
facility, a state must demonstrate that the designated facility cannot
reasonably apply the BSER to achieve the degree of emission limitation
determined by the EPA because it entails: (1) An unreasonable cost of
control resulting from plant age, location, or basic process design;
(2) physical impossibility or technical infeasibility of installing
necessary control equipment; or (3) other factors specific

to the facility (or class of facilities) that are fundamentally
different from the factors considered in the establishment of the
emission guidelines.\266\ The EPA proposes in EG OOOOc that the first
criterion remains the same as under the existing RULOF provision in 40
CFR 60.24a(e). For the second criterion, the EPA is proposing in EG
OOOOc to add a reference to technical infeasibility, as a similar yet
distinct factor from that of physical impossibility of control.
Finally, the EPA is proposing in EG OOOOc to revise the third criterion
to capture any circumstance at a specific designated facility that is
fundamentally different from the factors the EPA considered in
determining the BSER.
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    \266\ States may also account for RULOF when applying standards
of performance to a class of designated facilities. For purposes of
administrative efficiency, a state may be able to calculate a
uniform standard of performance that accounts for RULOF using a
single set of demonstrations to meet the proposed requirements
described in this section if the group of sources has similar
characteristics.
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    The EPA proposes in EG OOOOc to require that, in order to
demonstrate that a designated facility cannot reasonably meet the
presumptive level of stringency based on one of these three criteria,
the state must show that implementing the BSER is not reasonable for
the designated facility due to fundamental differences between the
factors the EPA considered in determining the BSER, such as cost and
technical feasibility of control, and circumstances at the designated
facility. Per the requirements of CAA section 111(a)(1), the EPA
determines the BSER by first identifying control methods that it
considers to be adequately demonstrated, and then determining which are
the best systems by evaluating (1) the cost of achieving such
reduction, (2) any non-air quality health and environmental impacts,
(3) energy requirements, (4) the amount of reductions, and (5)
advancement of technology. Accordingly, the state plan must show that
there are fundamental differences between a designated facility and the
EPA's BSER determination based on the EPA's consideration of any of
these factors.
    For instance, if the state could demonstrate that the cost-per-ton
was significantly higher at a specific designated facility than
estimated by the EPA in the BSER analysis, and/or that a specific
designated facility does not have adequate space to reasonably
accommodate the installation, and/or that it is technically infeasible
to comply with the presumptive standard based on source-specific
technical barriers that are fundamentally different than those
considered in the EPA's BSER determination, that designated facility
may be evaluated for a less stringent standard because of the
consideration of RULOF.
    However, states may not invoke RULOF based on minor, non-
fundamental differences. There could be instances where a designated
facility may not be able to comply with the level of stringency
required by EG OOOOc based on the precise metrics of the BSER
determination but is able to do so within a reasonable margin. For
example, the costs and cost effectiveness could be slightly higher than
estimated by the EPA for the BSER for the presumptive standard, but
that would not invoke RULOF. Similarly, there might also be instances
where the EPA determines the BSER for a designated facility as a
particular technology, but a particular designated facility does not
currently have the capability to implement that technology, or it would
be cost prohibitive to gain that capability. However, if that
designated facility has the ability instead to reasonably install a
different, non-BSER technology to achieve the presumptive level of
stringency, the designated facility would not be eligible for a less
stringent standard that accounts for RULOF.
    Following are a few illustrative examples. The EPA is proposing to
determine the BSER for wet seal centrifugal compressors designated
facility an emission standard of 3 scfm volumetric flow rate. As
described in section IV.G of this preamble, the cost effectiveness of
complying with the 3 scfm emission standard is estimated to be
approximately $711 per ton of methane reduced for compressors in the
transmission and storage segment. Therefore, under the proposed RULOF
requirements for this EG, the state could evaluate the cost
effectiveness of implementing the BSER for a particular wet seal
centrifugal compressor in order to achieve the presumptive standard. As
noted above, the first criterion a state may use to justify RULOF in
applying a standard of performance is unreasonable cost of control
resulting from plant age, location, or basic process design. If a state
determined that for a centrifugal compressor affected facility in their
state, the cost effectiveness was $71,000 per ton of methane removed,
that would represent a valid demonstration of unreasonable cost of
control. However, a slightly higher cost effectiveness (e.g., $1,000
per ton, which is well within the range the EPA deems to be cost-
effective) may be representative of a minor difference that would not
represent a valid demonstration for unreasonable cost. This example is
only for illustrative purposes and should not be interpreted to
represent the difference that must exist to demonstrate unreasonable
cost of control (i.e., the cost effectiveness does not need to be two
orders of magnitude higher than the presumptive standard to be
considered unreasonable).
    By way of further example, for the pneumatic controller designated
facility, the EPA determined that use of non-venting controllers is
BSER. At sites without electrical power, compliance solutions include
solar-powered controllers, a generator which powers electrical
controllers or an instrument air system, capturing the emissions and
routing them to a process, or installing self-contained controllers.
There could be physical constraints that impact the installation of
solar panels or a generator, and there may be technical infeasibility
issues related to ability to route to a process or to use self-
contained controllers. If a state determined that it would be
physically impossible and technically infeasible to install non-venting
controllers at a designated facility given the size and physical
constraints needed to install it, the lack of a process that can accept
the gas, or operational conditions that would not support the use of a
self-contained controller, this would represent a valid demonstration
of physical impossibility or technical infeasibility of installing
necessary control equipment.
    As a third example of how RULOF may not be used is in the case of
the super-emitter response program. Upon notification of an emission
event over 100 kg/hr, the program requires an owner/operator to do a
root cause analysis to determine the source of the emissions event and
either take corrective action or explain why no corrective action was
warranted. Because it is not known what the source of the emissions
event is prior to the root cause analysis, RULOF cannot be applied in
any state plan to exempt an owner or operator from conducting this
analysis. Moreover, the EPA anticipates it would generally be
inappropriate for a designated facility with a less stringent standard
due to RULOF to be permitted to have unintentional and continuing
emissions events as high as 100 kg/hr such that the owner/operator
would not need to take corrective action under the super-emitter
response program.
    The EPA solicits comment on the proposal to require states to
demonstrate, as a threshold matter when determining whether a state may
account for RULOF in order to set a less

stringent standard, that the designated facility cannot reasonably
apply the BSER to achieve the presumptive level of stringency
determined by the EPA. The EPA further solicits comment on whether
other considerations should inform the circumstances under which the
EPA should permit RULOF to be used to set a less stringent standard for
a particular designated facility. The EPA also discusses and solicits
comments later in section V.B.3.g. on the types of information used to
support a RULOF demonstration.
d. Calculation of a Standard Which Accounts for Remaining Useful Life
and Other Factors
    If a state has made the proposed demonstration that accounting for
RULOF is appropriate for a particular designated facility, the state
may then apply a less stringent standard. The current RULOF provision
in subpart Ba is silent as to how a less stringent standard should be
calculated, raising the potential for inconsistent application of this
provision across states and the potential for the imposition of a
standard less stringent than what would be reasonably achievable by a
designated facility. In order to fill this gap and ensure the integrity
of EG OOOOc, the EPA is proposing several requirements that would apply
for the calculation of a standard of performance that accounts for
RULOF. The proposed requirements described in this section would
provide a framework for the state's analysis in evaluating and
identifying a less stringent standard, and in doing so would prevent
the application of a standard that is less stringent than what is
otherwise reasonably achievable by a particular designated facility.
    The EPA is first proposing in EG OOOOc to require that the state
determine and include, as part of the plan submission, a source-
specific BSER for the designated facility. As described previously, the
statute requires the EPA to determine the BSER by considering control
methods that it considers to be adequately demonstrated, and then
determining which are the best systems by evaluating: (1) The cost of
achieving such reduction, (2) any non-air quality health and
environmental impacts, (3) energy requirements, (4) the amount of
reductions, and (5) advancement of technology. To be consistent with
this statutory construct, the EPA proposes that in determining a less
stringent BSER for a designated facility, a state must also consider
all these factors in applying RULOF for that source. Specifically, the
plan submission must identify all control technologies available for
the source and evaluate the BSER factors for each technology, using the
same metrics and evaluating them in the same manner as the EPA did in
developing the EG using the five criteria noted above.\267\
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    \267\ To the extent that a state seeks to apply RULOF to a class
of facilities that the state can demonstrate are similarly situated
in all meaningful ways, the EPA proposes to permit the state to
conduct an aggregate analysis of these factors for the entire class.
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    We are further proposing that the standard must be in the same form
(e.g., numerical rate-based emission standard) as required by the EG
OOOOc presumptive standard. The EPA notes there may be cases where a
state determines that a designated facility cannot reasonably implement
the BSER but can instead reasonably implement another control measure
to achieve the same level of stringency required by an EG. In such
cases, the standard of performance that reflects the designated
facility-specific BSER would be the same level of stringency as the
degree of emission limitation achievable through application of the
EPA's BSER.
    The EPA solicits comment on these proposed requirements for the
calculation and form of the less stringent standard that accounts for
remaining useful life and other factors. The EPA believes that the five
identified BSER factors generally address all relevant information that
states would reasonably consider in evaluating the emission reductions
reasonably achievable for a designated facility. Moreover, the EPA
considers that that these factors provide states with the discretion to
weigh these factors in determining the BSER and establishing a
reasonable standard of performance for the source. However, the EPA
solicits comments on whether there are additional factors, not already
accounted for in the BSER analysis, that the EPA should permit states
to consider in determining the less stringent standard for an
individual source. The EPA also solicits comments on whether we should
consider these factors to be part of a presumptively approvable
framework for applying a less stringent standard of performance, rather
than requirements, and, if so, what different approaches states might
use to evaluate and identify less stringent standards that the EPA
should consider to be satisfactory in evaluating state plans that apply
RULOF.
    The EPA also notes that CAA section 111(d) requires that state
plans include measures that provide for the implementation and
enforcement of a standard of performance. This requirement therefore
applies to any standard of performance established by a state that
accounts for RULOF. Such measures include monitoring, reporting, and
recordkeeping requirements, as required by 40 CFR 60.25a, as well as
any additional measures specified under EG OOOOc. In particular, any
standard of performance that accounts for RULOF is also subject to the
requirement under subpart Ba that the state plan submission include a
demonstration that each standard is quantifiable, non-duplicative,
permanent, verifiable, and enforceable. 40 CFR 60.27a(g)(3)(vi).
e. Contingency Requirements
    The EPA recognizes that a source's operations may change over time
in ways that cannot always be anticipated or foreseen by the EPA,
state, or designated facility. This is particularly true where a state
seeks to rely on a designated facility's operational conditions, such
as the source's remaining useful life or restricted capacity, as a
basis for setting a less stringent standard. If the designated facility
subsequently changes its operating conditions after the state applies a
less stringent standard of performance, there is potential for the
standard to not match what is reasonably achievable by a designated
facility, resulting in forgone emission reductions and undermining the
level of stringency set by EG OOOOc. For example, a state may seek to
invoke RULOF for a designated facility located at a well site (e.g.,
storage vessel) during a time when oil prices are low. The market
demand may prompt the owner or operator to shut the well site which may
not have been anticipated by the BSER. The well site may be shut in for
the duration of the compliance period required by an EG. Under this
scenario, the state may be able to demonstrate that it is not
reasonably cost effective for the designated facility to implement the
BSER in order to achieve the presumptive level of stringency, and the
state could set a less stringent standard of performance for this
storage vessel designated facility. However, because market conditions
are not a physical constraint on the designated facilities operations,
it is possible that oil prices can increase in the future therefore
causing the production demand to increase without any other legal
constraint.
    The implementing regulations do not currently address this
potential scenario. To address this issue, the EPA is proposing for
purposes of EG OOOOc to add a contingency requirement to the RULOF
provision that would require a state to include in its state plan a
condition making a source's operating

condition, such as remaining useful life or restricted capacity,
enforceable whenever the state seeks to rely on that operating
condition as the basis for a less stringent standard. This requirement
would not extend to instances where a state applies a less stringent
standard on the basis of an unalterable condition that is not within
the designated source's control, such as technical infeasibility, space
limitations, water access, or subsurface reservoir and geological
conditions. Rather, this requirement addresses operating conditions
such as operation times, operational frequency, process temperature
and/or pressure, flow rate, fuel parameters, and other conditions that
are subject to the discretion and control of the designated facility.
    As previously discussed, the state plan submission must also
include measures for the implementation and enforcement of a standard
that accounts for RULOF. For standards that are based on operating
conditions that a facility has discretion over and can control, the
operating condition and any other measure that provides for the
implementation and enforcement of the less stringent standard must be
included in the plan submission and as a component of the standard of
performance. For example, if a state applies a less stringent standard
for a storage vessel designated facility on the basis that the storage
vessel has less throughput than maximum capacity of the storage vessel
(e.g., due to the current well production, or a state permit limit),
the plan submission must include an enforceable requirement for the
source to operate at or below that capacity factor, and include
monitoring, reporting, and recordkeeping requirements that will allow
the state, the EPA, and the public to ensure that the source is in fact
operating at that lower capacity.
    The EPA notes there may be circumstances under which a designated
facility's operating conditions change permanently so that there may be
a potential violation of the contingency requirements approved as
federally enforceable components of the state plan. For example, a
storage vessel designated facility that was previously running at lower
throughput now plans to run at a higher throughput full time, which
conflicts with the federally enforceable state plan requirement that
the facility operate at the lower throughput. To address this concern,
a state may submit a plan revision to reflect the change in operating
conditions. Such a plan revision must include a new standard of
performance that accounts for the change in operating conditions. The
plan revision would need to include a standard of performance that
reflects the level of stringency required by EG OOOOc and meet all
applicable requirements, or if a less stringent standard is still
warranted for other reasons, the plan revision would need to meet all
of the applicable requirements for considering RULOF.
    The EPA requests comment on the proposed contingency requirements
to address the concern that a designated facility's operations may
change over time in ways that do not match the original rationale for a
less stringent standard.
f. Requirements Specific to Remaining Useful Life
    Remaining useful life is the one ``factor'' that CAA section 111(d)
explicitly requires that the EPA permit states to consider in applying
a standard of performance. The current RULOF provision generally allows
for a state to account for remaining useful life to set a less
stringent standard. However, the provision does not provide guidance or
parameters on when and how a state may do so. Consistent with the
principles described previously in this section, the EPA is proposing
certain requirements for when a state seeks to apply a less stringent
standard on grounds that a designated facility will retire in the near
future.
    The EPA is proposing to require that in order to account for
remaining useful life in setting a less stringent standard for a
particular designated facility, the state plan must identify the
source's retirement date and substantiate why this retirement date
qualifies for the imposition of a less stringent standard. The state
plan must include a demonstration of why the source's remaining useful
life based on its retirement date reasonably warrants a less stringent
standard and does not undermine the control objectives of the EG and
CAA section 111(d) itself.
    This demonstration may take into account considerations in relation
to the remaining useful life such as the time needed to purchase and
install equipment required to comply, the time needed to develop a
compliance plan and secure the services of specialized contractors to
perform services required for compliance, the expected window of time
needed to obtain approvals of outside agencies, the time needed to
conduct any required community outreach or public hearings, as well as
other potential factors.
    However, the EPA is proposing that one consideration must be
addressed in every case to substantiate that the remaining useful life
qualifies the imposition of a less stringent standard. That is, the
state must demonstrate that the cost of control is unreasonable in
relation to the retirement date.
    When the EPA determines a BSER, it considers cost and, in many
instances, the EPA specifically considers annualized costs associated
with payment of the total capital investment of the technology
associated with the BSER. In the estimation of this annualized cost,
the EPA assumes an interest rate and a capital recovery period,
sometimes referred to as the payback period. For example, in the
estimation of the annual costs for the installation of an instrument
air system to power pneumatic controllers with compressed air a medium-
sized transmission and storage site, the EPA estimates that the total
capital investment (equipment and installation) of the system would be
$76,481. For the BSER analysis, the EPA assumed an interest rate of
seven percent and a capital recovery period of 15 years. This means
that the annual cost of recovering the initial capital investment
including interest, was $8,397 per year for 15 years. The total annual
cost includes this capital recovery cost plus the additional operation
and maintenance cost of the equipment (additional beyond what would be
required for a natural gas-driven controller system). For this example,
the additional operation and maintenance cost was estimated to be
$2,816 per year, resulting in a total annual cost of $11,213 and a cost
effectiveness of $1,250 per ton of methane removed, which is a value
within the range considered reasonable by the EPA.
    Therefore, for this example, the cost effectiveness is reasonable
considering a capital recovery period, or payback period, of 15 years.
If the remaining useful life was less than 15 years, the result could
be a cost effectiveness that is outside of the range considered
reasonable by the EPA. For example, consider a remaining useful life of
six years. The resulting capital recovery cost would be $26,742 per
year and total annual cost would be $29,196. This would yield a cost
effectiveness of $1,834 per ton of methane removed, which would still
be in the range considered reasonable by the EPA. Therefore, the state
would not be able to claim that the costs were unreasonable for a
remaining useful life of six years. However, if the remaining useful
life were only two years, the capital recovery cost would be $70,502
per year and the total annual cost would be $72,956. The cost
effectiveness of this would be almost $4,600 per ton of methane
removed, which is outside of

the range considered reasonable by the EPA. In this situation, this
could potentially be used as part of a demonstration that may qualify
the remaining useful life for the imposition of a less stringent
standard.
    Note that this specific example is only for illustrative purposes.
Specifically, for pneumatic controller designated facilities, there are
compliance options (e.g., electric controllers) that are considerably
less expensive than the installation of an instrument air system. A
state would have to demonstrate unreasonable cost of control for each
of the identified compliance options, not just one.
    The EPA proposes that the only cost factor that should be
considered in a remaining useful life determination of cost
unreasonableness is whether there is a significant capital investment
required to design, purchase, and install equipment. A BSER based on
compliance measures that do not require such upfront capital
expenditures would have been demonstrated to have reasonable costs in
the EPA's analysis for the presumptive standards. This would largely be
the case if the affected facility operates for two years or 50 years.
Therefore, the EPA does not believe that all types of designated
facilities should be eligible for a determination of unreasonable costs
associated with remaining useful life. Accordingly, the proposed rule
would only allow that cost unreasonableness be considered in a state's
demonstration that a source's remaining useful life based on its
retirement date reasonably warrants a less stringent standard for the
following types of designated facilities: oil wells with associated
gas, storage vessels, pneumatic controllers, and pneumatic pumps. A
cost unreasonableness determination would not be allowed for any other
designated facility types. Note that this would not necessarily
prohibit a state from making a demonstration for these other types of
designated facilities, as some of the other factors mentioned above
(e.g., time needed to develop a compliance plan and secure the services
of specialized contractors to perform services required for compliance)
could be relevant for such facilities. However, a state could not rely
on unreasonable cost in determining that remaining useful life
justifies a less stringent standard.
    The EPA recognizes that, even with the criteria outlined above, the
result could be that different states could make demonstrations that
result in different remaining useful life periods for the same types of
designated facilities. In order to avoid this potential inequity, the
EPA is requesting comment on whether EG OOOOc should include a single
``outermost retirement date'' that would define the maximum length of
time that would qualify for a designated facility to operate at a less
stringent standard based on remaining useful life.
    As previously discussed, the EPA is proposing to require that when
an operational condition is used as the basis for applying a less
stringent standard, the state plan must include that condition as a
federally enforceable requirement. Accordingly, if a state applies a
less stringent standard by accounting for remaining useful life, the
EPA is proposing to require that the state plan must include the
retirement date for the designated facility as an enforceable
commitment and include measures that provide for the implementation and
enforcement of such commitment. For example, the state could adopt a
regulation or enter into an agreed order requiring the designated
facility to shut down by a certain date, and that regulation or agreed
order should then be incorporated into the state plan. The state could
also choose to incorporate the shutdown date into a permit, such as a
preconstruction permit, and incorporate that permit into the state
plan.
    The EPA is further proposing to require that the state plan impose
a standard that applies to a designated facility until its retirement.
This standard must reflect a reasonably achievable source specific BSER
and be calculated as described in section IV of this preamble and
section XII of the November 2021 proposal and supported by the
demonstration described in 2021 TSD \268\ and the Supplemental TSD
\269\ for this action. The EPA recognizes that, in some instances, a
designated facility may intend to retire imminently after the
promulgation of an EG, and in such cases it may not be reasonable to
require any controls based on the source's exceptionally short
remaining useful life. In the case of an imminently retiring source,
the EPA is proposing that the state apply a standard no less stringent
than one that reflects the designated facility's business as usual.
This requirement equitably accommodates practical considerations
without impermissibly exacerbating the impacts of the pollutant
regulated under CAA section 111(d). The EPA generally expects that an
``imminent'' retirement is one that is about to happen in the near
term, e.g., within six months.
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    \268\ Document ID No. EPA-HQ-OAR-2021-0317-0166.
    \269\ Located at Docket ID No. EPA-HQ-OAR-2021-0317.
---------------------------------------------------------------------------

    The EPA solicits comment on the proposed requirements specific to
the consideration of remaining useful life as described in this
section.
g. The EPA's Standard of Review of State Plans Invoking RULOF
    Under CAA section 111(d)(2), the EPA has the obligation to
determine whether a state plan submission is ``satisfactory.'' This
obligation extends to all aspects of a state plan, including the
application of a less stringent standard of performance that accounts
for RULOF. The proposed RULOF provision in EG OOOOc are intended to
provide parameters not only for the development of CAA section 111(d)
state plans, but for the EPA to evaluate the approvability of such
plans. The EPA is proposing the following requirements to further
bolster the RULOF provision and to facilitate the EPA's review of a
state plan to determine whether the plan implementing the RULOF
provision is ``satisfactory.'' As an initial matter, the EPA proposes
to explicitly require that the state must carry the burden of making
the demonstrations required under the RULOF provision. States carry the
primary responsibility to develop plans that meet the requirements of
CAA section 111(d) and therefore have the obligation to justify any
accounting for RULOF that they invoke in support of standards less
stringent than those provided by EG OOOOc. While the EPA has discretion
to supplement a state's demonstration, the EPA may also find that a
state plan's failure to include a sufficient RULOF demonstration is a
basis for concluding the plan is not ``satisfactory'' and therefore
disapprove the plan.
    The EPA is further proposing that for the required demonstrations,
the state must use information that is applicable to and appropriate
for the specific designated facility, and the state must show how
information is applicable and appropriate. As RULOF is a source-
specific determination, it is appropriate to require that the
information used to justify a less stringent standard for a particular
designated facility be applicable to and appropriate for that source.
The EPA anticipates that in most circumstances, site-specific
information will be the most applicable and appropriate to use for
these demonstrations and proposes to require site-specific information
where available. In some instances, site-specific information may not
be available, and a state may instead be able to use general
information about the Crude Oil and Natural Gas source

category to evaluate a particular designated facility. In such cases,
the state plan submission must provide both the general information and
a clear assessment of how the information is applicable to and
appropriate for the designated facility. The use of general information
must also be consistent with and supportive of the overall assessment
and conclusions regarding consideration of RULOF for the specific
designated facility.
    Finally, the EPA proposes to require that the information used for
a state's demonstrations under the new RULOF provisions must come from
reliable and adequately documented sources, which presumptively include
the following: EPA sources and publications, permits, environmental
consultants, control technology vendors, and inspection reports.
Requiring the use of such sources will help ensure that an accounting
of RULOF is premised on legitimate, verifiable, and transparent
information. The EPA solicits comment on the proposed list of
information sources and whether other sources should be considered as
reliable and adequately documented sources of information for purposes
of the RULOF demonstration, including but not limited to reliable and
adequately documented sources of cost information. \270\
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    \270\ The EPA acknowledges there may be reliable and adequately
documented sources of information other than those described in this
section. The EPA encourages states to consult with their Regional
Offices if there are questions about whether a particular source of
information would meet the applicable requirements.
---------------------------------------------------------------------------

    These requirements will aid both the EPA in evaluating whether
RULOF has been appropriately accounted for, and the public in
commenting on the EPA's proposed action on a state plan that includes a
less stringent standard on the basis of RULOF. The EPA solicits comment
on the proposed requirements described in this section regarding the
EPA's standard of review for state plans that invoke consideration of
RULOF.
h. Consideration of Impacted Communities
    CAA section 111(d) does not specify what are the ``other factors''
that the EPA's regulations should permit a state to consider in
applying a standard of performance. The EPA interprets this as
providing discretion for the EPA to identify the appropriate factors
and conditions under which the circumstance may be reasonably invoked
in establishing a standard less stringent than the EG. Additionally,
CAA section 111(d)(2)'s requirement that the EPA determine whether a
state plan is ``satisfactory'' applies to such plan's consideration of
RULOF in applying a standard of performance to a particular facility.
Accordingly, the EPA must determine whether a plan's consideration of
RULOF is consistent with section 111(d)'s overall health and welfare
objectives. While the consideration of RULOF can be warranted to apply
a less stringent standard of performance to a particular facility, such
standards have the potential to result in disparate health and
environmental impacts to communities most affected by and vulnerable to
impacts from the designated facilities being addressed by the state
plan. Those communities could be put in the position of bearing the
brunt of the greater health and environmental impacts resulting from
that source implementing less stringent emission controls than would
otherwise have been required pursuant to the EG. The EPA finds that a
lack of consideration to such potential outcomes would be antithetical
to the public health and welfare goals of CAA section 111(d) and the
CAA generally.
    In order to address the potential exacerbation of health and
environmental impacts to vulnerable communities as a result of applying
a less stringent standard, the EPA is proposing in EG OOOOc to require
states to consider such impacts when applying the RULOF provision to
establish those standards. The EPA is proposing to require that, to the
extent a designated facility would qualify for a less stringent
standard through consideration of RULOF, the state, in calculating such
standard, must consider the potential health and environmental impacts
on communities most affected by and vulnerable to the impacts from the
designated facility considered in a state plan for RULOF provisions.
These communities will be identified by the state as pertinent
stakeholders under the proposed meaningful engagement requirements
described in section V.B.6 of this preamble.\271\
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    \271\ Pursuant to the proposed meaningful engagement
requirements that states must complete prior to the submittal of
their state plans, states must identify pertinent stakeholders and
meaningfully engage with such pertinent stakeholders, including
communities most affected by and vulnerable to the impacts of the
plan.
---------------------------------------------------------------------------

    The EPA proposes to require that state plan submissions seeking to
invoke RULOF for a source must identify where and how a less stringent
standard impacts these communities. In evaluating a RULOF option for a
facility, states should describe the health and environmental impacts
anticipated from the application of RULOF for such communities, along
with any feedback the state received during meaningful engagement
regarding its draft state plan submission, including on any standards
of performance that consider RULOF. Additionally, to the extent there
is a range of options for reasonably controlling a source based on
RULOF, the EPA is proposing that in determining the appropriate
standard of performance, states should consider the health and
environmental benefits to the communities most affected by and
vulnerable to the impacts from the designated facility considered in a
state plan for RULOF provisions, and also provide in the state plan
submission a summary of the results that depicts the impacts to those
communities. This requirement to consider the health and environmental
impacts in any standard of performance taking into account RULOF is
consistent with the definition of ``standard of performance'' in CAA
section 111(a)(1). This definition requires the EPA to take into
account health and environmental impacts in determining the BSER. As
described in this section, if a designated facility qualifies for a
less stringent standard based on RULOF, the EPA is proposing the state
plan must identify a source-specific BSER based on the same factors and
metrics the EPA considered in determining the BSER in the EG.
Therefore, state plans must consider health and environmental impacts
in determining a source-specific BSER informing a RULOF standard, just
as the EPA is statutorily required to take into account these factors
in making its BSER determination. See section IV.D.1.b.III for an
example of the environmental impacts assessed for the EPA's proposed
BSER determination for pneumatic controllers.
    As an example, the state plan submission could include a
comparative analysis assessing potential controls on a designated
facility and the corresponding potential benefits to the identified
communities in controlling the designated facility. If the comparative
analysis shows that a designated facility could be controlled at a
certain cost threshold higher than required under the EPA's proposed
revisions to the RULOF provision, and such control benefits the
communities that would otherwise be adversely impacted by a less
stringent standard, the state in accounting for RULOF could choose to
use that cost threshold to apply a standard of performance.\272\

Given that states have the discretion rather than mandate to consider
RULOF in applying a standard of performance under CAA section 111(d),
it is reasonable for states to consider the potential impacts to
communities most affected by and vulnerable to the impacts from a
particular designated facility in calculating the level of stringency
for such standard.
---------------------------------------------------------------------------

    \272\ As previously described, CAA section 111(d) gives states
the discretion to consider RULOF for a particular source and are not
required to do so. States thus have the authority to choose to
impose a more stringent standard, including the presumptive
standard, than would be permissible under RULOF for other reasons,
e.g. based on consideration of communities other than identified
impacted communities.
---------------------------------------------------------------------------

    Additionally, under CAA section 111(d)(2)(B), the EPA has the
authority to prescribe a Federal plan promulgating a standard of
performance for designated facilities located in a state that fails to
submit a satisfactory plan. Consistent with the statute's mandate for
the EPA's regulations under CAA section 111(d) to permit states to
account for RULOF, this provision further directs that the EPA
``shall'' take into account RULOF in promulgating standards of
performance for the source category under the Federal plan. Therefore,
because the statute uses the same ``other factors'' phrasing in both
CAA sections 111(d)(1) governing state plans and 111(d)(2) governing
Federal plans, the EPA proposes in EG OOOOc to require that impacts to
communities most affected by and vulnerable to the impacts from
designated facilities be considered in both the state and Federal plan
contexts when accounting for RULOF.
    The EPA solicits comment on the proposed requirements described in
this section for consideration of vulnerable communities in the context
of RULOF.
i. Authority To Apply More Stringent Standards as Part of the State
Plan
    In the November 2021 proposal, the EPA proposed that states are
authorized to include in their state plans, and the EPA is authorized
to approve, requirements that are more stringent than the EG under the
authority of CAA section 116, as interpreted by the Court in Union
Electric v. EPA, 27 U.S. 246, (1976). 86 FR 63251. The EPA is now
proposing that under CAA section 111(d), consistent with the authority
conferred by CAA section 116, states may consider RULOF to include more
stringent standards of performance in their state plans.
    The current RULOF provision in subpart Ba under 40 CFR 60.24a(e)
governs instances where states seek to apply a less stringent standard
of performance to a particular designated facility. In promulgating
this provision, the EPA received comments contending that if states may
consider factors that justify less stringent standards, they must also
be permitted to consider factors that would justify greater stringency
than required by an EG, such as more expeditious compliance obligations
or the retirement of a source. EPA's Responses to Public Comments on
the EPA's Proposed Revisions to Emission Guideline Implementing
Regulations at 56 (Docket ID No. EPA-HQ-OAR-2017-0355-26740) (July 8,
2019). In response to these comments, the EPA explained that it
interpreted the statutory RULOF provision as intended to authorize only
standards of performance that are less stringent than the presumptive
level of stringency required by a particular EG. Id. at 57. The EPA has
reevaluated its prior interpretation and is now proposing for purposes
of EG OOOOc to interpret that the statute authorizes the EPA to permit
states to consider other factors that justify application of a more
stringent standard to a particular source than required by an EG. See
FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009). The EPA's
rationale for its revised interpretation and proposal is as follows.
    As described previously, while standards of performance must
generally reflect the presumptive level of stringency identified in the
EG, CAA section 111(d) also requires the EPA to permit states to ``take
into consideration, among other factors, the remaining useful life'' in
applying a standard of performance to a particular designated facility.
Aside from the explicit reference to remaining useful life, the statute
is silent as to what the ``other factors'' are that states may consider
in applying a standard of performance. It also silent as to whether the
``standard of performance'' to be ``appl[ied]'' to a ``particular
source'' must be a weaker or stronger standard--the only inference that
can be drawn from the statutory language is that RULOF may be used to
apply a different standard. Therefore, the EPA may reasonably interpret
this ambiguity both as to what the ``other factors'' are that states
may use to apply a standard of performance to a particular source, and
how such consideration may affect the stringency of such standard.
Accordingly, the EPA reasonably interprets this phrase as authorizing
states to consider other factors in exercising their discretion to
apply a more stringent standard to particular a source. This is a
reasonable interpretation of the statute because if Congress intended
the RULOF provision to be used only to allow states to apply less
stringent standards, it would have clearly specified that its intent or
enumerated ``other factors'' that are appropriate for relaxing the
stringency of a standard. The statute's explicit reference to remaining
useful life shows that if there were factors that Congress specifically
wanted the EPA to allow or disallow states to consider, it knew how to
expressly make its intent clear in the RULOF provision.
    In addition to finding that the statute does not preclude the EPA's
reasonable interpretation of the statutory RULOF provision as described
above, the EPA has reevaluated the bases for its prior interpretation
that states may only consider RULOF to apply a less stringent standard
and determined those bases were flawed. In making its prior
interpretation, the EPA noted that the new regulatory RULOF provision
under subpart Ba at 40 CFR 60.24a(e) was substantively similar to the
variance provision under subpart B, which authorizes the use of other
factors that ``make application of a less stringent standard or final
compliance time significantly more reasonable.'' 40 CFR 60.24(f)(3).
The EPA reasoned that because the variance provision under subpart B is
similar to and predated Congress's addition of the statutory RULOF
provision to CAA section 111(d) as part of the 1977 CAA Amendments,
``Congress effectively ratified the EPA's implementing regulations'
clear construct that remaining useful life and other factors are only
relevant in the context of setting less stringent standards.'' EPA's
Responses to Public Comments on the EPA's Proposed Revisions to
Emission Guideline Implementing Regulations at 57 (Docket ID# No. EPA-
HQ-OAR-2017-0355-26740) (July 8, 2019). The EPA has closely reexamined
the variance provision under subpart B and the RULOF provision under
CAA section 111(d) and does not find that these provisions support the
proposition that Congress clearly ratified the aspect of the variance
provision in subpart B allowing states to apply only less stringent
standards under certain circumstances. There are notable differences
between the subpart B variance provision and the CAA section 111(d)
RULOF provision that indicate Congress did not intend to incorporate
and ratify all aspects of the EPA's regulatory approach when amending
CAA section 111(d) in 1977. Particularly, for pollutants found to cause
or contribute to endangerment of public health, subpart B allows states
to apply a less stringent standard under

certain circumstances unless the EPA provides otherwise in a specific
EG for a particular designated facility or class of facilities. 40 CFR
60.24(c), (f). Subpart B places no similar exception for states in
authorizing them to seek a variance for a standard addressing a
pollutant for which the EPA has made a welfare-based, but not public
health-based, endangerment finding under 111(b)(1)(A). 40 CFR 60.24(d).
By contrast, the statutory RULOF provision does not make a similar
distinction between public health and welfare-based pollutants, which
the EPA itself acknowledged in promulgating the regulatory RULOF
provision in subpart Ba. 84 FR 32570 (July 8, 2019). Therefore, the EPA
cannot clearly ascertain whether the statutory RULOF provision ratified
the variance provision under subpart B, given that certain key elements
of the latter are not present in the former. There is nothing in CAA
section 111(d) or the legislative history that suggests Congress
enacted the statutory RULOF provision by ratifying certain elements of
the regulatory variance provision in subpart B but not others.
    Additionally, in taking its prior position that states may only
consider RULOF to apply a less stringent standard, the EPA asserted
that the legislative history of the 1977 CAA Amendments supported its
interpretation. The EPA highlighted the following statement in the
House conference report adopting the amendment to add the statutory
RULOF provision: ``The section also makes clear that standards adopted
for existing sources under section 111(d) of the Act are to be based on
available means of emission control (not necessarily technological) and
must, unless the state decides to be more stringent, take into account
the remaining useful life of the existing sources.'' H.R. Conf. Rep.
No. 94-1742, (Sep. 30, 1976), 1977 CAA Legis. Hist. at 88. Based on
this statement, the EPA found that the caveat that states have the
choice to not invoke the RULOF provision and instead ``be more
stringent'' suggests that considering RULOF is only intended to allow a
state to make a standard less stringent. The EPA now finds that its
prior reliance on this legislative history was flawed. The cited
statement only speaks to remaining useful life, which is a factor that
inherently suggests a less stringent standard, but it is completely
silent as to the ``other factors'' the statute references. Thus, there
is no indication that Congress intended to limit the ``other factors''
that states may apply in developing their plans only to permit less
stringent, and not also more stringent standards. Rather, the cited
statement explicitly acknowledges that states may choose to ``be more
stringent'', which supports the EPA's interpretation of the statute to
permit states to consider other factors to set standards more stringent
than the degree of emission limitation achievable through application
of the BSER.
    Interpreting the statutory RULOF provision as authorizing states to
apply a more stringent standard of performance to a particular source
is also consistent with the purpose and structure of CAA section
111(d). CAA section 111(d) clearly contemplates cooperative federalism,
where states bear the obligation to establish standards of performance.
Nothing under CAA section 111(d) suggests that the EPA has the
authority to preclude states from determining that it is appropriate to
regulate certain sources within their jurisdiction more strictly than
otherwise required by federal requirements. To do so would be arbitrary
and capricious in light of the overarching purpose of CAA section
111(d), which is to require emission reductions from existing sources
for certain pollutants that endanger public health or welfare. It is
inconsistent with the purpose of CAA section 111(d) and the role it
confers upon states for the EPA to constrain them from further reducing
emissions that harm their citizens, and the EPA does not see a
reasonable basis for doing so.
    Other factors states may wish to account for in applying a more
stringent standard than required under an EG include, but are not
limited to, early retirements, effects on local communities, and
availability of control technologies that allow a source to achieve
greater emission reductions. However, the EPA cannot anticipate each
and every factor under which a state may seek to apply a more stringent
standard. Therefore, the EPA will evaluate on a case-by-case basis the
inclusion of a more stringent standard in a state plan addressing EG
OOOOc. The EPA is also proposing to require that states seeking to
apply a more stringent standard of performance based on other factors
must adequately demonstrate that the different standard is in fact more
stringent than the presumptive level of stringency. Such standard of
performance must meet all applicable statutory and regulatory
requirements, including that it is adequately demonstrated,\273\ and
the state plan must include measures that provide for the
implementation and enforcement of the standard as with any standard of
performance under CAA section 111(d).
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    \273\ The EPA is not proposing to require the state to conduct a
source-specific BSER analysis for purposes of applying a more
stringent standard, as the EPA proposes to require for application
of a less stringent standard. So long as the standard will achieve
equivalent or better emission reductions than required by EG OOOOc,
the EPA believes it is appropriate to defer to the state's
discretion to, e.g., choose to impose more costly controls on an
individual source.
---------------------------------------------------------------------------

    For the reasons described in this section, the EPA proposes to
permit states to consider factors which justify applying a standard of
performance that is more stringent than required under an EG OOOOc.
    Therefore, for purposes of EG OOOOc, per the authority of CAA
sections 111(d) and 116, the EPA proposes to permit states to include
more stringent standards of performance in their plans and that the EPA
must approve and render such standards as federally enforceable, so
long as the minimum requirements of the EG and subpart Ba are met.\274\
The EPA solicits comment on its proposal as described in this section.
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    \274\ The EPA notes that its authority is constrained to
approving measures which comport with applicable statutory
requirements. For example, CAA section 111(d) only contemplates that
state plans would include requirements for designated facilities
regulated by a particular EG; therefore, the EPA concludes that CAA
section 116 does not provide it with the authority to approve and
render federally enforceable measures on entities other than those
on designated facilities.
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4. Providing Measures That Implement and Enforce Such Standards
    As described in the November 2021 proposal, the EPA proposed to
require that state plans must also include compliance schedules for the
presumptive standards including where states choose to account for
RULOF, methods employed to implement and enforce the presumptive
standards such that the EPA can review and identify measures that
assure transparent and verifiable implementation, and states must
include appropriate monitoring, reporting, and recordkeeping
requirements to ensure that state plans adequately provide for the
implementation and enforcement of the presumptive standards.\275\ The
EPA is proposing to supplement the November 2021 proposal by clarifying
that states maintain the same monitoring, reporting, and recordkeeping
requirements, or equivalent requirements as described in EG OOOOc for
presumptive standards that states adopt in their plans. The EPA further
clarifies that where a state plan adopts standards of performance that

differ from the presumptive standards, the plan may accordingly include
different monitoring, reporting, and recordkeeping requirements than
those in the presumptive standards, but such requirements must be
appropriate for the implementation and enforcement of the standards and
must be determined to be equivalent as described in Section V.B.2. For
components of a state plan that differ from any presumptively
approvable aspects of the final EG, the EPA will review the
approvability of such components through notice and comment rulemaking.
---------------------------------------------------------------------------

    \275\ 86 FR 63252 (November 15, 2021).
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5. Emissions Inventories
    In the November 2021 proposal the EPA discussed that the
implementing regulations at 40 CFR 60.25a contain generally applicable
requirements for emission inventories, source surveillance, and
reports. 86 FR 63253 (November 16, 2021). 40 CFR 60.25a(a) requires
that state plans shall include an inventory of all designated
facilities, including emission data for the designated pollutants. This
provision further requires that such data shall be summarized in the
plan, and emission rates of designated pollutants from designated
facilities shall be correlated with applicable standards of
performance. However, due to the very large number of existing oil and
natural gas sources,\276\ and the frequent change of configuration and/
or ownership, the EPA recognized that it may not be practical to
require states to compile this information in the same way that is
typically expected for other industries under other EG. Therefore, the
EPA solicited comment on whether to supersede the requirements of 40
CFR 60.25a(a) for purposes of this EG.\277\
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    \276\ In the U.S. the EPA has identified over 15,000 oil and gas
owners and operators, around 1 million producing onshore oil and gas
wells, about 5,000 gathering and boosting facilities, over 650
natural gas processing facilities, and about 1,400 transmission
compression facilities.
    \277\ The EPA may supersede any requirement in its implementing
regulations for CAA section 111(d) if done so explicitly in the EG.
See 40 CFR 60.20a(a)(1).
---------------------------------------------------------------------------

    State commenters generally support superseding the implementing
regulations and agree that states should be able to document impacted
sources differently than other CAA section 111(d) plans.\278\ While
some state commenters have state inventories, others confirmed the
EPA's understanding that some states do not have comprehensive tracking
systems for a designated facility inventory and associated
emissions.\279\ Some commenters discussed that the development of such
an inventory would be resource intensive with little benefit.\280\ The
State of Colorado referenced their 2020 leak inspection reporting
program which suggests there are over 15,000 well production facilities
in the state and the State of West Virginia estimates over 54,000
natural gas and over 10,000 crude oil producing wells in the
state.\281\ Both states recognize that each well production facility
would represent a much greater number of individual designated
facilities. The State of West Virginia further described the complexity
of inventory development given not only the vast number of sources, but
also the frequent change of configurations and ownership within the
industry. These points were echoed by the State of Texas which also
provided an estimate of the number of production wells in the state,
however, they noted that unless a state-wide equipment inventory is
conducted the number of designated facilities is unclear.\282\ Multiple
state commenters support the EPA allowing states to leverage existing
inventories and emissions data, even if that data might not be fully
aligned with the designated facilities in the EG.\283\
---------------------------------------------------------------------------

    \278\ The EPA received several comments on this topic. A
sampling of these comments is cited in footnotes in this section.
See Document ID Nos. EPA-HQ-OAR-2021-0317-0769, EPA-HQ-OAR-2021-
0317-0775.
    \279\ See Document ID Nos. EPA-HQ-OAR-2021-0317-0832-A2, EPA-HQ-
OAR-2021-0317-0722.
    \280\ See Document ID Nos. EPA-HQ-OAR-2021-0317-0200.
    \281\ See Document ID Nos. EPA-HQ-OAR-2021-0317-0775, EPA-HQ-
OAR-2021-0317-0424.
    \282\ See Document ID Nos. EPA-HQ-OAR-2021-0317-0419.
    \283\ See Document ID Nos. EPA-HQ-OAR-2021-0317-1267.
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    For purposes of this EG, the EPA does not believe that the
inventory and detailed emissions data required under 40 CFR 60.25a(a)
is necessary for states to develop standards of performance, and that
standards of performance could be developed with a different type of
emissions inventory data. For example, the emissions inventory data
could be derived from the GHGRP, which collects GHG emissions and
activity data annually from applicable facilities conducting petroleum
and natural gas systems activities. Facilities use uniform methods
prescribed by the EPA to calculate emissions for applicable source
types, and the EPA conducts a multi-step verification process to ensure
reported data are accurate, complete, and consistent. Reported data are
made available to the public through several portals accessible via the
EPA's website. The emissions and activity data reported to the GHGRP
can be leveraged to develop standards of performance. While the EPA
recognizes that the GHGRP includes a reporting threshold and that GHGRP
facility definitions and emission factors might not be fully aligned
with the designated facilities in the EG, the GHGRP data represent the
same general type of inventory information as the inventory and
detailed emissions data required under 40 CFR 60.25a(a). In addition,
the EPA does not think it reasonable to burden states to derive
information from GHGRP, which the EPA already has, only to resubmit it
to the Agency. The EPA notes that emissions inventory data used to
develop standards of performance could also be derived from other
available existing inventory information available to the state.
Therefore, in order to avoid the potential burden that could be imposed
by applying 40 CFR 60.25a(a) as written to this EG, and potential
burden and duplicative information collection imposed by requiring
states to use other inventories such as GHGRP, the EPA proposes to
supersede the requirements of 40 CFR 60.25a(a) for purposes of this EG,
so that state plans are not required to include an inventory and
emissions data as described under this provision.
6. Meaningful Engagement
    In the November 2021 proposal, the EPA proposed and solicited
comment on requiring states to perform early outreach and meaningful
engagement with overburdened and underserved communities during the
development process of their state plan pursuant to EG OOOOc.\284\ 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,\285\ 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. The EPA received numerous comments from
states supporting the proposed

requirements for meaningful engagement, providing suggestions based on
their own experience and initiatives, while requesting that the EPA
provide specificity around meaningful engagement and examples of
satisfactory engagement. The EPA also hosted two discussions with
representatives of state and local air agencies to hear more about
their perspectives on meaningful engagement. The Agency held a similar
meeting with communities, tribes, and small businesses to hear their
views on meaningful engagement.
---------------------------------------------------------------------------

    \284\ See 86 FR 63254 (November 15, 2021).
    \285\ 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.
---------------------------------------------------------------------------

    Many stakeholders support robust public engagement, especially with
communities most affected by and vulnerable to the impacts of the state
plan, and some highlight how this type of public engagement aligns with
their commitment to EJ.\286\ State commenters also encouraged the EPA
to allow for flexibility to craft plans to the unique economic and
demographic features of each state.\287\ Some states and industry
commenters question the EPA's authority to require states to conduct
meaningful engagement and seek guidance on alternative procedures for
meaningful engagement.\288\ Other state commenters indicate that states
already take EJ initiatives into consideration and some say additional
efforts would be redundant and share concern about adequate resources
to conduct meaningful engagement.\289\ State commenters generally
advocate for the EPA to provide examples of the types of engagement
that will be approvable and seek additional guidance. Industry
commenters expressed commitment to support constructive interactions
between industry, regulators, and surrounding communities and
populations that may be disproportionately impacted.\290\ Some industry
and state commenters express concern that the meaningful engagement
requirement could cause disapproval of a state plan if the EPA fails to
provide a definition for meaningful engagement with clear parameters
and examples of adequate engagement.\291\
---------------------------------------------------------------------------

    \286\ The EPA received several comments on this topic. A
sampling of these comments are cited in footnotes in this section.
See Document ID Nos. EPA-HQ-OAR-2021-0317-0581, EPA-HQ-OAR-2021-
0317-0808-A1, EPA-HQ-OAR-2021-0317-0921, EPA-HQ-OAR-2021-0317-0938,
EPA-HQ-OAR-2021-0317-0814, EPA-HQ-OAR-2021-0317-0832-A2, EPA-HQ-OAR-
2021-0317-0727, EPA-HQ-OAR-2021-0317-0775, and EPA-HQ-OAR-2021-0317-
1267.
    \287\ See Document ID Nos. EPA-HQ-OAR-2021-0317-0832-A2 and EPA-
HQ-OAR-2021-0317-0581.
    \288\ See Document ID Nos. EPA-HQ-OAR-2021-0317-0727, EPA-HQ-
OAR-2021-0317-0921, EPA-HQ-OAR-2021-0317-0938, EPA-HQ-OAR-2021-0317-
0921, EPA-HQ-OAR-2021-0317-0763, EPA-HQ-OAR-2021-0317-0722.
    \289\ See Document ID Nos. EPA-HQ-OAR-2021-0317-0775 and EPA-HQ-
OAR-2021-0317-0727.
    \290\ See Document ID Nos. EPA-HQ-OAR-2021-0317-0808-A1, EPA-HQ-
OAR-2021-0317-0445, EPA-HQ-OAR-2021-0317-0819, and EPA-HQ-OAR-2021-
0317-0456.
    \291\ See Document ID Nos. EPA-HQ-OAR-2021-0317-0921 and EPA-HQ-
OAR-2021-0317-0938.
---------------------------------------------------------------------------

    State commenters offer an array of helpful suggestions based on
their own experience and initiatives. New Mexico, for example, agreed
with the EPA that requiring states to share information and solicit
input from stakeholders at critical junctures during plan development
will ensure communities have abundant opportunities to participate in
the plan development process.\292\ New Mexico further agreed with the
EPA's proposal to give the reasonable notice requirement additional and
separate meaning from ``public hearing'' to ensure the public has
reasonable notice of relevant information, as well as the opportunity
to participate in the state plan development.
---------------------------------------------------------------------------

    \292\ See Document ID Nos. EPA-HQ-OAR-2021-0317-0832-A2.
---------------------------------------------------------------------------

    New Mexico discusses that in addition to using traditional
communication technologies, even with potential barriers involving
accessibility of technologies (e.g., video conferencing, social media,
and smart phone applications), these new technologies should also be
utilized during the meaningful engagement process and they specifically
ask the EPA to permit both new and traditional communication
technologies to qualify as a means to conduct meaningful public
engagement. New Mexico also suggests that states, local governments,
community organizations, and other stakeholders may find it helpful to
create organized groups that can help address interstate air quality
issues. For example, they participate in the Four Corners Air Quality
Group, which could serve as a model for such coordination. New Mexico,
along with the Navajo Nation, Colorado, Arizona, and Utah meet
regularly to address common air quality issues in the region. The Four
Corners Air Quality Group also includes a variety of different
stakeholders including community members and organizations and industry
leaders. The goals and functions of any cross-border groups can, and
should, be crafted to the unique needs of the area(s) in which they
serve.
    States and Cities provided other examples of strategies for states
to consider.\293\ They first suggest targeting special notice, by mail,
of public participation opportunities to residents and schools within a
certain radius from regulated oil and natural gas facilities. Their
second suggestion includes hosting a series of public meetings or
workshops to provide background on the purpose of the state plans, the
process for developing the plans, and the public comment and hearing
process. Third, they suggest assuring that those public meetings,
workshops, and hearings are held at times that are convenient for
members of the affected community, that translation services are
available at such events, and that there are options for participating
via phone or videoconference. Fourth, they recommend ensuring that any
public meeting, workshop, hearing, or other format for gathering input
are safe spaces and that participation does not endanger community
members because of immigration or employment status. Fifth, they
suggest providing information on a public website and in hardcopy at an
accessible location within the community, such as a public library or
school. Lastly, they agree that the state plan submission would need to
describe and report on the engagement conducted which would be
evaluated as part of the state plan completeness determination.
Commenters also seek additional guidance on how states could go about
making public meetings or workshops safe spaces for undocumented
members of overburdened or underserved communities. Similarly,
commenters ask if the EPA could specify that information about the
rulemaking to be shared at a public meeting or workshop must be
translated in communities with linguistic barriers by the EPA's duties
under Title VI the Civil Rights Act.
---------------------------------------------------------------------------

    \293\ See Document ID Nos. EPA-HQ-OAR-2021-0317-1267.
---------------------------------------------------------------------------

    The EPA previously proposed in EG OOOOc to include certain
meaningful engagement in addition to the requirements for notice and
public hearing. The notice and public hearing requirements in 40 CFR
60.23a(c)-(f) require the states to conduct one or more public hearings
prior to the adoption of any plan. The states are to provide
notification to the public by 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).
    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.\294\ Accordingly, in order for there to be a meaningful
opportunity for the public to participate in hearings on 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.\295\ Examples of prominent
advertisement for a public hearing, in addition to 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.
---------------------------------------------------------------------------

    \294\ 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.
    \295\ FACT SHEET: Biden-Harris Administration Mobilizes
Resources to Connect Tribal Nations to Reliable, High-Speed internet
(Dec. 22, 2021). https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/22/fact-sheet-biden-harris-administration-mobilizes-resources-to-connect-tribal-nations-to-reliable-high-speed-internet/; 7% of Americans don't use the
internet. Who are they? Pew Research Center (Apr. 2, 2021), https://www.pewresearch.org/fact-tank/2021/04/02/7-of-americans-dont-use-the-internet-who-are-they/.
---------------------------------------------------------------------------

    Given the public health and welfare objectives of CAA section
111(d) in regulating specific existing sources, the EPA believes it is
reasonable to require meaningful engagement as part of the state plan
development public participation process in order to further these
objectives. Additionally, CAA section 301(a)(1) provides that the EPA
is authorized to prescribe such regulations ``as are necessary to carry
out [its] functions under [the CAA].'' The proposed meaningful
engagement requirements would effectuate the EPA's function under CAA
section 111(d) in prescribing a process under which states submit plans
to implement the statutory directives of this section. Therefore, the
EPA is proposing additional meaningful engagement requirements to
ensure that pertinent stakeholders have reasonable notice of relevant
information and the opportunity to participate in the state plan
development throughout the process. The EPA intends to propose similar
meaningful engagement provisions to this provision under the
implementing regulations in a separate upcoming rulemaking that would
apply generally to new EG promulgated under CAA section 111(d). While
inviting comments on the application of these proposed revisions in the
context of the oil and gas sector in this rulemaking, the EPA also
encourages the public to provide comments on these proposed revisions
more generally in that upcoming rulemaking process to amend the
implementing regulations. The EPA intends to finalize that rulemaking
before finalizing this oil and gas rulemaking.
    Consistent with its intended addition to the implementing
regulations, in this supplemental proposal, the EPA is proposing
regulatory text for EG OOOOc in 40 CFR 60.5365c regarding the proposed
meaningful engagement requirements that states must complete prior to
the submittal of their state plans. In particular, the EPA is proposing
to define meaningful engagement as ``. . . timely engagement with
pertinent stakeholder representation in the plan development or plan
revision process. Such engagement must not be disproportionate nor
favor certain stakeholders. It must include the development of public
participation strategies to overcome linguistic, cultural,
institutional, geographic, and other barriers to participation to
assure pertinent stakeholder representation, recognizing that diverse
constituencies may be present within any particular stakeholder
community. It must include early outreach, sharing information, and
soliciting input on the State plan.'' The EPA is also proposing to
define that pertinent stakeholders ``. . .include, but are not limited
to, industry, small businesses, and communities most affected by and/or
vulnerable to the impacts of the plan or plan revision.'' Increased
vulnerability of communities 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. 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. 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 V.B.3.h 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 EG OOOOc will
provide the states specificity around the meaningful engagement
requirements while allowing for flexibility in the implementation of
such requirements.
    In the November 2021 proposal, the EPA proposed to include a
requirement for a demonstration of meaningful engagement as part of the
completeness evaluation of a state plan submittal. The EPA is proposing
regulatory text associated to the proposed meaningful engagement
demonstration states are to include in their plans as part of the
completeness criteria. The EPA is proposing that a state would be
required to provide, in their plan submittal, a list of the pertinent
stakeholders and a summary of engagement conducted and of the
stakeholder input provided. The EPA would evaluate the states'
demonstrations regarding meaningful engagement as part of its
completeness evaluation of a state plan submittal. If a state plan
submission does not include the required elements for public
participation, including requirements for meaningful engagement, this
may be grounds for the EPA to find the submission incomplete or to
disapprove the plan. The EPA is soliciting comment on the proposed
definitions of meaningful engagement and pertinent stakeholders as well
as the inclusion of meaningful engagement requirements in completeness
criteria for state plan submission. The EPA also solicits comments on
examples or models of meaningful engagement by states, including best
practices and challenges.
    During the state plan process, the EPA expects states to identify
the pertinent stakeholders. As part of efforts to ensure

meaningful engagement, states will share information and solicit input
on plan development and on any accompanying assessments. This
engagement will help ensure that plans achieve the appropriate level of
emission reductions, that communities most affected by and vulnerable
to the health and environmental impacts from the designated facilities
partake in the benefits of the state plan, and that these communities
are protected from being adversely impacted by the plan. In addition,
the EPA recognizes that emissions from designated facilities could
cross state and/or Tribal borders, and therefore may affect communities
in neighboring states or Tribal lands. The EPA expects that the
discussion in section VI of the November 2021 proposal (86 FR 63139)
will assist the states in the identification of pertinent stakeholders.
The EPA is soliciting comment on how meaningful engagement should apply
to pertinent stakeholders inside and outside of the borders of the
state that is developing a state plan, for example, if a state should
coordinate with the neighboring state and/or tribes for engagement or
directly contact the affected communities.
    The EPA further proposes to allow a state to request the approval
of different state procedures for public participation. The EPA
proposes to require that such alternate state procedures do not
supersede the meaningful engagement requirements, so that a state would
still be required to comply with the meaningful engagement requirements
even if they apply for a different procedure than the other public
notice and hearing requirements. The EPA is however also proposing that
states may apply for, and the EPA may approve, alternate meaningful
engagement procedures if, in the judgement of the Administrator, the
procedures, although different from the requirements of this subpart,
in fact provide for adequate notice to and meaningful engagement of the
public. The EPA is soliciting comment on the distinction between
request for approval of alternate state procedures to meet public
notice and hearing requirements from those to meet meaningful
engagement, and comment on the consideration of request for approval of
alternate meaningful engagement procedures.
    The EPA conducted meaningful engagement prior to the November 2021
proposal. The EPA believes this example will provide states with ideas
for how they can structure their own meaningful engagement activities.
States are not limited by the EPA's example, but rather the EPA's
example should be viewed as a minimum of what type of engagement is
considered sufficient to meet the meaningful engagement requirement for
purpose of state plan submittal.
    Prior to the November 2021 proposal, the EPA identified stakeholder
groups likely to be interested in the proposal and engaged with them in
several ways including through meetings, training webinars, and public
listening sessions to share information with stakeholders about this
action, on how stakeholders may comment on the proposed rule, and to
hear their input about the industry and its impacts as we were
developing this proposal.\296\ Specifically, on May 27, 2021, the EPA
held a webinar-based training designed for communities affected by this
rule.\297\ This training provided an overview of the Crude Oil and
Natural Gas Industry and how it is regulated and offered information on
how to participate in the rulemaking process. The EPA also held virtual
public listening sessions June 15 through June 17, 2021, and heard
various community and health related themes from speakers who
participated. 298 299
---------------------------------------------------------------------------

    \296\ For more information about the EPA's pre-proposal outreach
activities, please see EPA Docket ID No. EPA-HQ-OAR-2021-0295 and
EPA-HQ-OAR-2021-0317. For a description of the themes that
commenters raised please see the 2021 November proposal at 86 FR
63143.
    \297\ https://www.epa.gov/sites/default/files/2021-05/documents/us_epa_training_webinar_on_oil_and_natural_gas_for_communities.5.27.2021.pdf.
    \298\ June 15, 2021 session: https://youtu.be/T8XwDbf-B8g; June
16, 2021. session: https://www.youtube.com/watch?v=l23bKPF-5oc; June
17, 2021 session: https://www.youtube.com/watch?v=R2AZrmfuAXQ.
    \299\ Full transcripts for the listening sessions are posted at
EPA Docket ID No. EPA-HQ-OAR-2021-0295.
---------------------------------------------------------------------------

    In addition to the trainings and listening sessions, the EPA
engaged with community leaders potentially impacted by this proposed
action by hosting a meeting with EJ community leaders on May 14, 2021.
The EPA provided the public with factual information to help them
understand the issues addressed by the November 2021 proposal. We
obtained input from the public, including communities, about their
concerns about air pollution from the oil and gas industry, including
receiving stakeholder perspectives on alternatives. The EPA considered
and weighed information from communities as the agency developed the
November 2021 proposal.
    In addition to the engagement conducted prior to the November 2021
proposal, the EPA provided the public, including those communities
disproportionately impacted by the burdens of pollution, opportunities
to engage in the EPA's public comment period for this proposal,
including by hosting trainings on the proposed rule and a public
hearing. EPA hosted three half-day trainings November 16 through 18,
2021, to provide background information, an overview of the proposed
rule, stakeholder panel discussions, and information on how to
effectively engage in the regulatory process. The trainings were open
to the public, with a focus on communities with EJ concerns, Tribes and
small business stakeholders. The public hearing occurred on November 30
to December 2, 2021, and the EPA requested speakers discuss:
     What impacts they are experiencing (i.e., health, noise,
smells, economic),
     How the community would like the EPA to address their
concerns,
     How the EPA is addressing those concerns in the
rulemaking, and
     Any other topics, issues, concerns, etc. that the public
may have regarding this proposal.
    The EPA expects that the description of the meaningful engagement
with pertinent stakeholders included in the preamble and in the docket
of this rulemaking will serve as a guide of the meaningful engagement
demonstration states are to include in their plans as part of the
completeness criteria.

C. Components of State Plan Submission

    While the EPA is not proposing any changes from the November 2021
proposal to this section, the EPA is proposing to add a provision for
electronic submission of state plans. The provision at 40 CFR
60.23a(a)(1) currently requires state plan submissions to be made in
accordance with the provision in 40 CFR 60.4. Pursuant to 40 CFR
60.4(a), all requests, reports, applications, submittals, and other
communications to the Administrator pursuant to 40 CFR part 60 shall be
submitted in duplicate to the appropriate Regional Office of the EPA.
The provision in 40 CFR 60.4(a) then proceeds to include a list of the
corresponding addresses for each Regional Office. In this supplemental
proposal, the EPA is proposing to require electronic submission of
state plans instead of paper copies as according to 40 CFR 60.4. In
particular, the EPA is proposing to include a sentence in 40 CFR
60.5362c(a) that reads as follows: ``The submission of such plan shall
be made in electronic format according with 40 CFR 60.5362c(d) of this
subpart.'' In 40 CFR 60.5362c(d), the EPA is proposing the requirements
associated with the electronic submittal of plans.

    As previously described, CAA section 111(d) requires the EPA to
promulgate a ``procedure'' similar to that of CAA section 110 under
which states submit plans. The statute does not prescribe a specific
platform for plan submissions, and the EPA reasonably interprets the
procedure it must promulgate under the statute as allowing it to
require electronic submission. Requiring electronic submission is
reasonable for the following reasons. Providing for electronic
submittal of CAA section 111(d) state plans in EG OOOOc in place of
paper submittals aligns with current trends in electronic data
management and will result in less burden on the states. It is the
EPA's experience that the electronic submittal of information increases
the ease and efficiency of data submittal and data accessibility. The
EPA's experience with the electronic submittal process for SIPs under
CAA section 110 has been successful as all the states are now using the
State Planning Electronic Collaboration System (SPeCS). SPeCS is a
user-friendly, web-based system that enables state air agencies to
officially submit SIPs and associated information electronically for
review and approval to meet their CAA obligations related to attaining
and maintaining the NAAQS. SPeCS is the EPA's preferred method for
receiving such SIPs submissions. The EPA has worked extensively with
state air agency representatives and partnered with E-Enterprise for
the Environment and the Environmental Council of the States to develop
this integrated electronic submission, review, and tracking system for
SIPs. SPeCS can be accessed by the states through the CDX. The CDX is
the Agency's electronic reporting site and performs functions for
receiving acceptable data in various formats. The CDX registration site
supports the requirements and procedures set forth under the EPA's
Cross-Media Electronic Reporting Regulation, 40 CFR part 3.
    The EPA is proposing to include the requirements associated with
the electronic submittal of a state plan in EG OOOOc. As proposed, EG
OOOOc will require state plan submission to the EPA be via the use of
SPeCS or through an analogous electronic reporting tool provided by the
EPA for the submission of any plan required by this subpart. The EPA is
also proposing to include language to specify that states are not to
transmit CBI through SPeCS. Even though state plans submitted to the
EPA for review and approval pursuant to CAA section 111(d) through
SPeCS are not to contain CBI, this language will also address the
submittal of CBI in the event there is a need for such information to
be submitted to the EPA. The requirements for electronic submission of
CAA section 111(d) state plans in EG OOOOc will ensure that these
Federal records are created, retained, and maintained in electronic
format. Electronic submittal will also improve the Agency's efficiency
and effectiveness in the receipt and review of state plans. The
electronic submittal of state plans may also provide continuity in the
event of a disaster like the one our nation experienced with COVID-19.
The EPA requests comment on whether the EPA should provide for
electronic submittals of plans as an option instead of as a
requirement. The EPA requests comment on whether a requirement for
electronic submissions of CAA section 111(d) state plans should be via
SPeCS or whether another electronic mechanism should be considered as
appropriate for CAA section 111(d) state plan submittals.

D. Timing of State Plan Submissions and Compliance Times

    Background and Court Decision Re: Vacated Timelines. 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 that
establishes standards of performance for each designated facility. The
EPA acknowledged in the November 2021 proposal that the D.C. Circuit
vacated certain timing provisions within 40 CFR part 60, subpart Ba.
Am. Lung Assoc. v. EPA, 985 F.3d at 991 (D.C. Cir. 2021) (ALA). See 86
FR 63255 (November 15, 2021). These vacated timing requirements
include: the timeline for state plan submissions, the timeline for the
EPA to act on a state plan, the timeline for the EPA to promulgate a
Federal plan, and the timeline that dictates when state plans must
include increments of progress. As a result of the court's vacatur, no
regulations currently govern the timing of these actions for EGs
promulgated after July 8, 2019.\300\ The Agency plans to undertake a
separate rulemaking to address these vacated provisions in subpart Ba
for purposes of the implementing regulations, including a generally
applicable deadline for state plan submissions. However, the EPA
solicited comment in the November 2021 proposal on any facts and
circumstances that are unique to the oil and natural gas industry that
the EPA should consider when proposing a timeline for plan submission
applicable to a final EG for this source category. The EPA is now
proposing to require that each state adopt and submit to the
Administrator, within 18 months after publication of the final EG
OOOOc, a plan for the control of GHGs in the form of limitations on
methane to which EG OOOOc applies. As described further in this
section, an 18-month deadline for state plans addressing EG OOOOc both
appropriately accommodates the process required by states to develop
plans to effectuate the EG OOOOc, and is consistent with the objective
of CAA section 111(d) to ensure that designated facilities control
emissions of GHGs that the EPA has determined may be reasonably
anticipated to endanger public health or welfare.
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    \300\ The court did not vacate the applicability provision for
subpart Ba under 40 CFR 60.20a(a).
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    The EPA notes that the portions of the implementing regulations
under subpart Ba that were not affected by the court's vacatur, the
November 2021 proposal, and this supplemental proposal collectively lay
out all of the required components of, and requirements for, state
plans for purposes of EG OOOOc. Therefore, states will have the
necessary information at that time to develop state plans to meet the
requirements of any final EG OOOOc. Any separate rulemaking to address
the vacated provisions in subpart Ba will not add to or change these
required components. The EPA intends to propose deadlines for its
action on state plan submissions and for promulgation of a Federal plan
in its separate rulemaking. These deadlines are intended to apply
generally to these actions implementing EGs under CAA section 111(d),
including to the EPA's action on state plan submissions and
promulgation of a Federal plan under the final EG OOOOc. It is not
necessary for the EPA to propose deadlines on its own action on state
plans submitted in response to a final EG OOOOc, or promulgation of a
Federal plan where a state fails to submit an approvable plan, as part
of this supplemental proposal because these deadlines are not relevant
to states in the development of their plans, and go to the EPA's
actions subsequent to the states' development of their plans. However,
the EPA intends to propose and finalize these deadlines not later than
finalization of an EG OOOOc, so that states and stakeholders will have
knowledge of them as development on state plans begins. Additionally,
as described further in this section, the EPA is proposing the final
compliance schedule for designated facilities to run from the deadline
for state plan submissions. Accordingly, the compliance deadline for
any final EG

OOOOc will also be knowable and provide certainty of obligations to
regulated entities and other stakeholders in advance of state plan
development. 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, for EG OOOOc, the EPA has evaluated these factors and is
proposing the 18-month state plan deadline based on the minimum
administrative time reasonably necessary for each step in the
implementation process thus, minimizing impacts on public health and
welfare. This approach addresses both aspects of the ALA decision
because states will take no longer than necessary to develop and adopt
plans that impose requirements consistent with the overall objectives
of CAA section 111(d).
    The EPA acknowledges this proposed 18-month deadline is not
identical to the generally applicable three year-deadline for SIPs
under CAA section 110, which the agency adopted in the vacated subpart
Ba rule. However, the EPA's proposed deadline 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 OOOOc implementation process to independently determine the
appropriate duration of time to accomplish the given step as part of
the overall process, and the proposed timeline represents what the EPA
is proposing to determine will be necessary for a state plan upon
publication of any final EG OOOOc.
    As described previously, no timing requirements for state plan
submissions are currently in effect for EGs published after July 8,
2019. The original implementing regulations promulgated under subpart B
in 1975, which are applicable to EGs published before July 8, 2019,
provide that states have nine 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 three 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 propose for
EG OOOOc, 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 sections 129 and 182. The
EPA also considered the characteristics of the Crude Oil and Natural
Gas source category to assist justification for the timelines and
address how the timeline will impact health and welfare.
    In developing a CAA section 111(d) state plan, a state must
consider multiple components in meeting applicable requirements. In
addition to any requirements that an EG specifies for state plans,
subpart Ba specifies certain fundamental 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 these EPA
requirements for state plans, 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. Considering this
variability, 18 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 section 129), as described below, to help inform
this proposed 18-month timeline.
    Subpart B provides nine months for states to submit plans after
publication of a final EG. The EPA's review of state's timeliness for
submitting CAA section 111(d) plans under the 9-month timeline
indicates that most states either did not submit plans or submitted
plans that were substantially late. We note that the plans submitted
under subpart B were not subject to the additional requirements the EPA
is proposing for meaningful engagement and consideration of RULOF,
respectively described in section V.B. Based on the lack of timeliness
of prior state plan submissions under subpart B and the additional
requirements of this proposal, EG OOOOc, nine months is not a suitable
amount of time for most states to adequately develop a plan for an EG.
    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 V.B. for more
information on RULOF provisions). The contrast between the CAA section
129 plans and CAA section 111(d) plans suggests that in determining the
timeframe for CAA section 111(d) plan submissions the EPA should
provide for a longer timeframe than the 1 year timeframe the statute
provides under CAA section 129.
    The EPA found that a considerable number of states have not made
required state plan submissions in response to a CAA section 129 EG. In
instances where states submitted CAA section 129 plans, a significant
number of states submitted plans between 14 to 17 months after the
promulgated EG. This suggests that states will typically need more than
1 year to develop a state plan to implement an EG, particularly for a
program that permits more source-

specific analysis than under CAA section 129 as CAA section 111(d)
does.
    In the 2019 promulgation of subpart Ba, the EPA mirrored CAA
section 110 by giving states 3 years to submit plans. As previously
described, the court partly faulted the EPA for adopting the CAA
section 110 timelines without accounting for the differences in scale
and scope between CAA section 110 and 111(d) plans. The EPA has now
more closely evaluated the statutory deadlines and requirements in the
CAA section 110 implementation context to determine what might be
feasible for an OOOOc EG state plan submission timeline. The EPA
specifically focused on statutory SIP submission deadline and
requirements in the context of attainment plans for the ozone NAAQS.
Subpart 2 of Title I of the CAA contains a number of deadlines for
ozone attainment plans that are 2 years or longer. For example, areas
initially designated Marginal have two years from designation to submit
a SIP that contains a permitting program and emissions inventory. CAA
section 182(a). Areas initially designated Moderate have two years to
submit a plan implementing reasonable available control technologies
under CAA section 182(b)(2)), and three years to submit their
attainment plan and other requirements under CAA section 182(b)(1).
These ozone attainment plans are arguably more complicated for states
to develop when compared to plans under CAA section 111(d) for EG
OOOOc. For example, ozone 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) and EG
OOOOc, it is clear which designated facilities must be subject to a
state plan, and the standards of performance for these sources must
generally reflect the level of stringency determined by the EG unless a
state chooses to account for RULOF. Additionally, ozone attainment
plans must contain inventories of actual emissions from certain
sources, whereas the EPA is proposing to supersede the subpart Ba
inventory requirement for purposes of this EG. The difference in
complexity between the CAA ozone attainment plan requirements and the
plan requirements for EG OOOOc suggests that a timeline of 18 months is
more appropriate for developing state plans submissions in response to
this EG.
    Furthermore, the EPA considered the characteristics of the Crude
Oil and Natural Gas source category. The EPA believes that EG OOOOc has
the potential to require states to perform considerable engineering
and/or economic analyses for their plan. For example, the EPA