Air Quality State Implementation Plans; Approvals and Promulgations: Ohio; Regional Haze Plan for the Second Implementation Period

Air Plan Approval; Ohio; Regional Haze Plan for the Second Implementation Period

SUPPLEMENTARY INFORMATION:

Throughout this document whenever "we," "us," or "our" is used, we mean EPA.

I. Background

On July 30, 2021, Ohio EPA submitted a revision to its SIP to address regional haze for the second implementation period, supplemented it on August 6, 2024, and clarified it on June 16, 2025. ⁽¹⁾ Ohio EPA made this SIP submission to satisfy the requirements of the CAA's Regional Haze Program  ⁽²⁾ pursuant to CAA sections 169A and 169B and 40 CFR 51.308.

On August 30, 2024, EPA proposed to approve Ohio's Regional Haze SIP revision. A detailed analysis of Ohio's plan and EPA's evaluation are contained in the notice of proposed rulemaking (NPRM), dated August 30, 2024 (89 FR 71124), and will not be restated here. In the NPRM, EPA proposed to find that Ohio's Regional Haze SIP submission as supplemented satisfied the regional haze requirements for the second implementation period contained in 40 CFR 51.308(f), including the incorporation by reference of Director's Final Findings and Orders (DFFOs) with specific emissions rates in Ohio's long-term strategy into the SIP at 40 CFR 52.1870(d) at three power plants (Cardinal Power Plant, General James M. Gavin Power Plant, and Ohio Valley Electric Corp.-Kyger Creek Station) and retirements by 2028 at two power plants (Miami Fort Power Station and Zimmer Power Station).

On June 16, 2025, Ohio clarified in a letter that Zimmer Power Station Unit B006 retired in 2022 and that Miami Fort Power Station is considering converting Units B015 and B016 to natural gas in lieu of permanently shutting down. As such, Ohio stated that the DFFOs for these two facilities are not necessary for reasonable progress and are no longer part of its SIP submittal. Ohio EPA confirmed the past retirement of Zimmer Power Station Unit B006 is already permanent and federally enforceable. ⁽³⁾ Additionally, Ohio EPA also concluded that the DFFO for Miami Fort Power Station is not necessary for reasonable progress. Although not relied upon for reasonable progress, Ohio EPA affirms that Miami Fort Power Station continues to be required through Ohio EPA-issued Orders at the State level to either permanently shut down B015 and B016 or convert to natural gas in 2028.

II. Public Comment Process

The public comment period on EPA's proposed rule opened August 30, 2024, was extended until October 15, 2024, was reopened on a limited basis on February 28, 2025, and finally closed on March 17, 2025. 89 FR 71124, August 30, 2024; 89 FR 76442, September 18, 2024; 90 FR 10876, February 28, 2025. During this period, EPA received relevant comments from the following individuals, businesses, agencies, and organizations: Buckeye Power, Inc. and Ohio Valley Electric Corporation (Comment 1); Anonymous (Comment 2); Anonymous (Comment 3); U.S. Forest Service (USFS) (Comment 4); National Park Service (NPS) (Comment 5); Coalition to Protect America's National Parks (Comment 6); Black Environmental Leaders, Coalition to Protect America's National Parks, Junction Coalition, National Parks Conservation Association, Northeast Ohio Black Health Coalition, Ohio Environmental Council, and Sierra Club (Environmental Groups) (Comment 7); and National Parks Conservation Association, Sierra Club, Coalition to Protect America's National Parks, Ohio Environmental Council (Conservation Groups) (Comments 8-21); and Buckeye Power, Inc. and Ohio Valley Electric Corporation (Comment 22).

III. Summary of Public Comments and EPA's Responses

All comments received are included in the rulemaking docket for this action. In the June 17, 2025, Response to Comments document, which is included in the docket for this rulemaking, EPA provides full detailed responses to all significant comments received that further explain the basis for our final action.

EPA received comments on the NPRM addressing topics including, but not limited to, new emission limits, docket organization, cost considerations, visibility, enforceability of retirements, enforceability of permit conditions, existing effective controls, four-factor analyses, ⁽⁴⁾ CAA considerations, Best Available Retrofit Technology (BART), enforceability of Ohio's administrative orders, State-to-State consultations, Federal Land Manager (FLM) consultation, environmental justice, regional planning organization work products, incorporation by reference, Federal Implementation Plan (FIP) considerations, and renewable and nuclear energy options. The comments, while partially summarized below, are available in full in the docket for this rulemaking and are fully addressed in the June 17, 2025, Response to Comments document.

Comments received from Buckeye Power Inc., which operates Cardinal Power Plant, and Ohio Valley Electric Corporation, which operates Kyger Creek Station, were supportive of the proposed rulemaking and of the new emission limits for those facilities that Ohio EPA effectuated through DFFOs.

USFS expressed concern regarding EPA's consideration of costs/sales ratios as well as the comparison of emission reductions from already implemented shutdowns and fuel conversions to potential additional emission reductions.

NPS provided alternative considerations regarding the four-factor analyses and effective controls demonstrations submitted by Ohio for General James M. Gavin Power Plant, Cardinal Power Plant, Ohio Valley Electric Corp.-Kyger Creek Station, and Carmeuse Lime, Inc.-Maple Grove Operations. NPS also asserted that, at times, Ohio's implementation of the FLM consultation process did not follow the requirements of 40 CFR 51.308(i)(2) and (3).

The Coalition to Protect America's National Parks raised concerns about the number of industrial facilities in Ohio, their disproportionate impact on communities of color and low income, and their impact on Ohio's residents in general.

The Environmental Groups raised concerns about the impact of emissions from General James M. Gavin Power Plant on public health and regional haze in certain mandatory Class I Federal areas. ⁽⁵⁾

The Conservation Groups commented on benefits of improved visibility at Class I areas that would also improve public health. The Conservation Groups questioned the enforceability of permanent shutdowns, and whether the commitments to shut down 15 units by 2028 was as an adequate reason not to require new emission controls on these units. The Conservation Groups also questioned the enforceability of permit conditions requiring certain facilities to convert to natural gas and limited use. By forgoing four-factor analyses for Ohio Valley Electric Corp.-Kyger Creek Station, Cardinal Power Plant, and FirstEnergy Generation LLC-Bay Shore Plant, the Conservation Groups commented that Ohio failed to show that these facilities were effectively controlled and that cost-effective controls were not likely available. For the four-factor analyses that Ohio provided for General James M. Gavin Power Plant and Carmeuse Lime, Inc.-Maple Grove Operations, the Conservation Groups asserted that EPA's proposed approval of Ohio's conclusions was arbitrary and capricious and not reasonable considering the requirements of the CAA. For both facilities, the Conservation Groups commented on Ohio's consideration of visibility as a fifth factor. As an overarching concern, the Conservation Groups asserted that EPA could not exempt sources from Best Available Retrofit Technology requirements in the second implementation period. Regarding Ohio's DFFOs, the Conservation Groups questioned whether the requirements are practically enforceable, whether the terms were permanent, and whether they provide for monitoring, reporting and recordkeeping to provide adequate reporting for citizen enforcement.

The Conservation Groups also raised concerns about Ohio's implementation of the State-to-State consultation process, referring to requests from the Mid-Atlantic/Northeast Visibility Union (MANE-VU) and the Visibility Improvement State and Tribal Association of the Southeast (VISTAS) for four-factor analyses, low sulfur fuel standards, and lower emission limits. As to the FLM consultation process, the Conservation Groups reiterated comments provided by the FLMs that addressed Ohio's public notice process, reasons used to forgo four-factor analyses, assumptions used in cost calculations, evaluation of certain control measures, and consideration of visibility as a fifth factor. Environmental justice was also expressed as an area of concern by the Conservation Groups. The Conservation Groups commented that the public was not given an opportunity to review or comment on the work products of the Lake Michigan Air Directors Consortium (LADCO) during Ohio's development of their SIP revision. As to EPA's NPRM, the Conservation Groups commented that EPA's proposed action was not clear as to how the DFFOs were to be incorporated by reference into Ohio's SIP. Overall, the Conservation Groups urged EPA to disapprove Ohio's SIP revision and issue a FIP as soon as possible.

Regarding the reopening of the public comment period to notify the public that three permits were added to the docket, Buckeye Power, Inc. and Ohio Valley Electric Corporation provided additional comments, noting that the reopening of the comment period was unexpected and unnecessary, asserting that the presence of the permits themselves in the docket has no impact on the SIP.

As discussed in further detail in our proposed rule, this rule, the June 17, 2025, Response to Comments document, and the brief summary of those responses below, EPA finds that Ohio submitted a Regional Haze SIP revision that meets all the regional haze requirements for the second implementation period.

EPA concludes that Ohio's determinations of the measures necessary for reasonable progress were based on a reasonable consideration of the four statutory factors as discussed in the NPRM. Ohio thoroughly examined sources for existing effective controls and for potential additional emission controls through four-factor analyses. While Ohio provided information on control costs/sales ratios and visibility, Ohio did not use this information to reject potential additional emission controls. Ohio also did not reject emission controls merely because of other ongoing emission reductions. Rather, in consideration of the four statutory factors, Ohio found that potential additional controls were not cost-effective.

While some commenters suggested that Ohio should consider certain add-on control measures as cost-effective based on thresholds established by other States, the preamble to the Regional Haze Rule speaks to the flexibility afforded to States when considering the cost of compliance factor. See, e.g., 82 FR 3078, 3088, January 10, 2017. As such, EPA notes that the cost effectiveness threshold in one State should not necessarily be determinative of whether controls are cost-effective in another State.

In all cases, Ohio appropriately considered the four statutory factors and carefully weighed the potential emission controls and the large statewide reductions achieved during the second implementation period before appropriately deciding on whether further controls were necessary to make reasonable progress or needed in the State's long-term strategy. Ohio documented that 27 of the 38 coal-fired units above Ohio's threshold for source selection have either already permanently shut down, converted to limited use, converted to natural gas, or accepted enforceable limits. For the units that have already been retired, the record demonstrates that the shutdowns are federally enforceable and permanent. Based on 2016 emissions as shown in Table 4 of Ohio's SIP submittal, the shutdowns and conversions that have already taken place during the second implementation period represent statewide reductions of more than 37,000 tons per year sulfur dioxide (SO ₂ ) and 28,000 tons per year nitrogen oxides (NO _X ), and the conversions to natural gas add another 15,000 tons per year of SO ₂ reductions to that total.

For 2028 projections of emissions and visibility impairment, Ohio's technical demonstrations relied upon the thorough analysis and modeling provided by LADCO, which were subject to public notice and comment at both the State and Federal level. Based on this modeling, EPA notes that emissions from Ohio are not reasonably anticipated to cause or contribute to visibility impairment in any Class I areas that are above the 2028 uniform rate of progress. ^(6 7) Section III.2. and appendix A of Ohio's SIP submission provide references to LADCO's technical support document and supporting materials. Additionally, in the 2028 LADCO modeling, Miami Fort Power Station was assumed to be operating similar to past operation in that it was not retired in the 2028 modeling scenarios. Therefore, the modeling shows that all Class I areas affected by Ohio will be below their 2028 uniform rate of progress, whether or not Miami Fort Power Station continues to operate on coal. If Miami Fort Power Station does shut down or convert B015 and B016 to natural gas, then even greater emission reductions will be realized than were modeled. Based on that information, Ohio EPA concluded, and EPA agrees, that considering the numerous other on-the-books and on-the-way controls identified in the State's long-term strategy, removing the DFFO for Miami Fort Power Station from the SIP submission will not impact Ohio's ability to make reasonable progress at the Class I areas affected by emissions from Ohio. In line with recent proposals from EPA, ⁽⁸⁾ the Agency has determined that where visibility is below the uniform rate of progress in 2028 and the State has considered the four statutory factors, the State has presumptively demonstrated reasonable progress for the second implementation period for that Class I area, as Ohio has.

Ohio documented quantifiable and meaningful reductions in SO ₂ and NO _X emissions and ensured improvements in actual emission rates would continue to make reasonable progress by effectuating DFFOs for Cardinal Power Plant, General James M. Gavin Power Plant, and Ohio Valley Electric Corp.-Kyger Creek Station. Although a commenter questioned the practical enforceability of the DFFOs, EPA notes that the DFFOs effectively provide that specific monitoring, reporting, and recordkeeping requirements are provided for and must be incorporated into the facilities' title V operating permits, thereby affording adequate reporting for enforcement.

Given these facts and others discussed more fully in the NPRM and June 17, 2025, Response to Comments document, EPA agrees that it was reasonable for Ohio to conclude that existing Federally enforceable measures as well as controls included in the DFFOs constitute reasonable progress for the State's long-term strategy in the second implementation period.

Although one comment asserted that EPA did not provide an independent evaluation of Ohio's four-factor analyses for General James M. Gavin Power Plant and Carmeuse Lime, Inc.-Maple Grove Operations and, as such, that EPA's proposed approval of Ohio's SIP revisions was arbitrary and capricious, EPA carefully evaluated Ohio's SIP revisions along with the associated record in the docket and documented the information the State relied upon for transparency to the public.

As to comments regarding Ohio's participation in the FLM consultation process and the State-to-State consultation process, EPA fully considered Ohio's public notices that documented the FLMs' recommendations, MANE-VU's and VISTAS' requests, and Ohio's Responses in proposing to find that Ohio's FLM and State-to-State consultation process satisfied the requirements of 40 CFR 51.308(i)(2) and (3) and 51.308(f)(2)(ii), respectively.

While some comments raised concerns regarding public health, park visitation, and local economies, EPA notes that these are not considerations within the Regional Haze Program. With respect to public health concerns in particular, the primary national ambient air quality standards are among the standards that provide public health protection, including protection for the health of sensitive populations such as asthmatics, children, and the elderly.

Although some commenters urged EPA to disapprove Ohio's SIP revision and issue a FIP as soon as possible, as stated throughout our proposed action, this action, and the June 17, 2025, Response to Comments document, EPA has determined that Ohio reasonably considered the statutory and regulatory requirements and appropriately determined what measures are necessary for reasonable progress for the second implementation period and, therefore, a FIP is not necessary. For additional justification and rationale for this final action, please see the June 17, 2025, Response to Comments document located in the docket.

EPA is finalizing its approval of Ohio's July 30, 2021, Regional Haze SIP submission as supplemented on August 6, 2024, for the second planning period as proposed, with the exception of the DFFOs for Miami Fort and Zimmer Power Stations, after considering all comments received as addressed in detail in the June 17, 2025, Response to Comments document as well as Ohio's June 16, 2025, letter provided during EPA's review process.

IV. Final Action

EPA is approving the Regional Haze SIP revision submitted by Ohio EPA on July 30, 2021, supplemented on August 6, 2024, and clarified on June 16, 2025, as satisfying the regional haze requirements for the second implementation period contained in 40 CFR 51.308(f). EPA is finalizing the incorporation by reference into Ohio's SIP at 40 CFR 52.1870(d) the following Ohio EPA DFFOs for Cardinal Power Plant, B001, B002, and B009 (State effective date: July 26, 2024); Ohio Valley Electric Corp.-Kyger Creek, B001, B002, B003, B004, and B005 (State effective date: July 26, 2024); and General James M. Gavin Power Plant, B003 and B004 (State effective date: July 26, 2024).

V. Incorporation by Reference.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Ohio EPA's DFFOs described in section IV of this preamble and set forth in the amendments to 40 CFR part 52 below. EPA has made, and will continue to make, these documents generally available through www.regulations.gov, and at the EPA Region 5 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. ⁽⁹⁾

VI. Statutory and Executive Order Reviews.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Is not subject to Executive Order 14192 (90 FR 9065, February 6, 2025) because SIP actions are exempt from review under Executive Order 12866;

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a State program;
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA.

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian Tribe has demonstrated that a Tribe has jurisdiction. In those areas of Indian country, the rule does not have Tribal implications and will not impose substantial direct costs on Tribal governments or preempt Tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

This action is subject to the Congressional Review Act, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a "major rule" as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 8, 2025. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, title 40 CFR part 52 is amended as follows:

PART 52-APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

⁽¹⁾  Ohio EPA's letter dated June 16, 2025, is included in the docket for this rulemaking.

⁽²⁾  The Regional Haze Rule is codified at 40 CFR 51.308.

⁽³⁾  For Zimmer Power Station, the Retired Unit Exemption form, title V Permit P0135965, and list of retired generators from the Pennsylvania-New Jersey-Maryland Interconnection (PJM) Regional Transmission Organization (RTO) documenting the facility's retirement are included in the docket. Permit P0135965 is also publicly available at https://edocpub.epa.ohio.gov/publicportal/edochome.aspx.

⁽⁴⁾  Under CAA 169A(g)(1), the four statutory factors are the costs of compliance, the time necessary for compliance, the energy and non-air quality environmental impacts of compliance, and the remaining useful life of any potentially affected sources. See also 40 CFR 51.308(f)(2)(i). An evaluation of potential control options for sources of visibility impairing pollutants based on applying the four statutory factors in CAA section 169A(g)(1) is referred to as a "four-factor" analysis.

⁽⁵⁾  Areas statutorily designated as mandatory Class I Federal areas consist of national parks exceeding 6,000 acres, wilderness areas and national memorial parks exceeding 5,000 acres, and all international parks that were in existence on August 7, 1977. CAA 162(a). There are 156 mandatory Class I areas. The list of areas to which the requirements of the visibility protection program apply is in 40 CFR part 81, subpart D. Class I Federal areas are hereinafter referred to as "Class I areas".

⁽⁶⁾  40 CFR 51. 308(f)(3)(ii). See 89 FR 71124; 71146-71147, August 30, 2024.

⁽⁷⁾  The uniform rate of progress is used as a tracking metric to help States assess the amount of progress they are making towards the national visibility goal over time in each Class I area. See 89 FR 71124; 71125.

⁽⁸⁾ See "Air Plan Approval; West Virginia; Regional Haze State Implementation Plan for the Second Implementation Period," 90 FR 16478, 16483-16484 (April 18, 2025). See also "Air Plan Approval; South Dakota; Regional Haze Plan for the Second Implementation Period," 90 FR 20425, 20434 (May 14, 2025) and "Air Plan Approval; Vermont; Regional Haze State Implementation Plan for the Second Implementation Period," 90 FR 22033, 22043 (May 23, 2025).

⁽⁹⁾  62 FR 27968 (May 22, 1997).