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EPA Finalizes Plans for Implementing Emissions Guidelines Under Clean Air Act

The Environmental Protection Agency on Nov. 13 released a final rule that sets timelines and processes for states and federal plans to implement emissions guidelines under Clean Air Act section 111(d).

The updated Implementation Regulations would apply to state plans crafted for any “emission guideline” published after July 2019 although sector-specific 111(d) rules can include different requirements. 

The emissions guidelines detail the level of emission reductions that are achievable for sources in each category.

The final rule includes revisions to the timing requirement for state plan submittal, EPA’s action on state plan submissions, EPA’s promulgation of federal plans, the addition of regulatory flexibility to improve state plan processing, new requirements for meaningful engagement, and amended remaining useful life considerations when applying a less stringent standard.

The final rule also amends the “standard of performance” definition and finalizes clarifications associated with CAA section 111(d) compliance flexibility to allow trading and averaging in state plans.

Deadlines for States to Develop Plans

EPA is giving states 18 months to develop plans under its general implementing regulations. But the proposed existing source greenhouse gas power plant emissions guidelines would give states 24 months to develop state plans.

EPA requires states in their state plan submission or significant plan revisions to describe the efforts the state has undertaken to engage pertinent stakeholders meaningfully, what input they received from stakeholders, and how that input was used in their state plan. EPA will also include this information in federal plans or significant federal plan revisions.

The preamble also includes best practices for meaningful engagement that states may consider. EPA is also finalizing “meaningful engagement” and “pertinent stakeholder” definitions. 

EPA is finalizing mechanisms to improve the flexibility and efficiency of review, submission, and implementation of state plans.

These mechanisms are already available to states under section 110 of the CAA and include:

  • Partial state plan approval and disapproval. Partial approval or disapproval are subject to notice and comments.
  • Conditional approvals can be granted; however, states must provide EPA with any necessary revisions no later than one year after the conditional approval takes effect.
  • Parallel processing allows states to ask EPA to initially review a plan that is technically completed but not administratively complete.
  • State plan call allows EPA to call for state plan revisions if a previously approved state plan is substantially inadequate to meet CAA or EG requirements.
  • Error correction allows EPA to revise prior actions if the agency determines that its action or plan was in error. States do not have to submit a state plan revision.

APPA Submitted Comments Earlier This Year

APPA submitted comments on the proposal in February in which it voiced supported a 36-month timeframe for states to develop their plans. 

APPA recommended that EPA adopt a 24-month period for increments of progress from the deadline for state plan submittal. APPA also recommended a federal plan timeline no shorter than 18 months.

In its comments, APPA also supported community engagement in the section 111(d) implementation process.

Noting that public participation requirements should complement existing state and local practices and that public participation demonstrations should not be required in section 111(d) state plans. APPA expressed concerns that the proposed RULOF provisions were unworkable and unlawfully limited state authority. APPA supported EPA’s proposal to allow electronic submittals of state plans as an option.

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