Rule2026-01406
Air Plan Approval; Indiana; Regional Haze Plan for the Second Implementation Period
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 26, 2026
Effective
February 25, 2026
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is approving the Regional Haze State Implementation Plan (SIP) revision for Indiana submitted by the Indiana Department of Environmental Management (IDEM or Indiana) on December 29, 2021, as satisfying applicable requirements under the Clean Air Act (CAA) and EPA's Regional Haze Rule (RHR) for the program's second implementation period. Indiana's SIP submission addresses the requirement that States must periodically revise their long-term strategies for making reasonable progress towards the national goal of preventing any future, and remedying any existing, anthropogenic impairment of visibility, including regional haze, in mandatory Class I Federal areas. Indiana's SIP submission also addresses other applicable requirements for the second implementation period of the regional haze program. EPA is taking this action pursuant to sections 110 and 169A of the CAA.
Full Text
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<title>Federal Register, Volume 91 Issue 16 (Monday, January 26, 2026)</title>
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[Federal Register Volume 91, Number 16 (Monday, January 26, 2026)]
[Rules and Regulations]
[Pages 3057-3066]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-01406]
[[Page 3057]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2021-0963; FRL-12589-02-R5]
Air Plan Approval; Indiana; Regional Haze Plan for the Second
Implementation Period
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving the
Regional Haze State Implementation Plan (SIP) revision for Indiana
submitted by the Indiana Department of Environmental Management (IDEM
or Indiana) on December 29, 2021, as satisfying applicable requirements
under the Clean Air Act (CAA) and EPA's Regional Haze Rule (RHR) for
the program's second implementation period. Indiana's SIP submission
addresses the requirement that States must periodically revise their
long-term strategies for making reasonable progress towards the
national goal of preventing any future, and remedying any existing,
anthropogenic impairment of visibility, including regional haze, in
mandatory Class I Federal areas. Indiana's SIP submission also
addresses other applicable requirements for the second implementation
period of the regional haze program. EPA is taking this action pursuant
to sections 110 and 169A of the CAA.
DATES: This final rule is effective on February 25, 2026.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R05-OAR-2021-0963. All documents in the docket are listed on
the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website. Although listed in the index,
some information is not publicly available, i.e., Confidential Business
Information (CBI), Proprietary Business Information (PBI), or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either through <a href="https://www.regulations.gov">https://www.regulations.gov</a> or at the Environmental Protection Agency, Region
5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago,
Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding Federal holidays. We recommend that
you telephone Charles Hatten, Environmental Engineer, at (312) 886-6031
before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT: Charles Hatten, Air and Radiation
Division (AR-18J), Environmental Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6031,
<a href="/cdn-cgi/l/email-protection#f49c958080919ada979c9586989187b4918495da939b82"><span class="__cf_email__" data-cfemail="a1c9c0d5d5c4cf8fc2c9c0d3cdc4d2e1c4d1c08fc6ced7">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
Table of Contents
I. Background
II. Public Comment Process
III. Summary of Public Comments and EPA's Responses
A. Comments Received
B. Comments and Responses That Are Not Specific to EPA's Uniform
Rate of Progress (URP) Policy
C. Comments and Responses That Are Specific to EPA's URP Policy
D. EPA's Final Approval
IV. Final Action
V. Statutory and Executive Order Reviews
I. Background
On December 29, 2021, IDEM submitted a revision to its SIP to
address regional haze requirements for the second implementation
period. IDEM made this SIP submission to satisfy the requirements of
the CAA's regional haze program pursuant to CAA sections 169A and 169B
and 40 CFR 51.308.
On June 18, 2025 (90 FR 25944), EPA proposed to approve the Indiana
regional haze SIP revision. In the notice of proposed rulemaking
(NPRM), EPA proposed to find that Indiana's Regional Haze SIP
submission satisfied the regional haze requirements for the second
implementation period contained in 40 CFR 51.308(f). As described
further in EPA's proposed approval, IDEM utilized technical analyses
and its source selection methodology to target the sources with the
highest potential to impair visibility at mandatory Class I areas.\1\
IDEM's initial list of twenty candidate sources for a four-factor
analysis represented the majority of Indiana's emissions that may
influence visibility impacts on out-of-state Class I areas. IDEM
further refined that list by excluding eleven electric generating units
(EGUs) that either had existing effective controls or that were not
expected to continue operating beyond 2028. IDEM then proceeded with
site-specific four-factor analyses for the remining nine non-EGU
facilities identified through this process. A detailed analysis of
Indiana's plan and EPA's evaluation are contained in the NPRM, dated
June 18, 2025 (90 FR 25944), as well as the Technical Support Document
(TSD), dated April 22, 2025, and will not be restated here.
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\1\ There are no Class I areas in Indiana. However, the RHR
requires SIPs to address Class I areas located outside the state
that may be affected by emissions from within the state.
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II. Public Comment Process
The public review and comment period on EPA's NPRM opened June 18,
2025, and was originally scheduled to close on July 18, 2025. On June
26, 2025, EPA received a comment letter from the National Parks
Conservation Association, the Coalition to Protect America's National
Parks, and the Sierra Club (Comment 1) requesting that EPA provide an
additional 30 days for public comment on the NPRM. On July 16, 2025 (90
FR 31923), EPA published a NPRM extending the public review and comment
period to August 18, 2025.
During the review and comment period, EPA received relevant
comments from the following individuals, businesses, agencies, and
organizations: an individual identified as Kurtis K. (Comment 2); three
anonymous commenters (Comments 3, 4, and 5); IDEM (Comment 6); Power
Generators Air Coalition (Comment 7); Ameren Missouri, American
Electric Power Company, Inc. on behalf of its operating companies, and
Nebraska Public Power District (collectively referred as the
``Utilities for Reasonable Progress'') (Comment 8); Ohio Valley
Electric Corporation (OVEC) and Indiana-Kentucky Electric Corporation
(IKEC) (Comment 9); Abrams Environmental Law Clinic, Artists for
Environmental Restoration, Inc., Citizens Climate Lobby-Evansville
Chapter, Conservation Law Center, Environmental Advocacy Center at the
Northwestern Pritzker School of Law, Faith in Place, Hessville Dune
Dusters, Izaak Walton League-Indiana Division, Izaak Walton League-
Porter County Chapter, Just Transition Northwest Indiana, National
Parks Conservation Association, Owen-Putnam Friends of the Forest, Save
the Dunes, Sierra Club-Hoosier Chapter, and Tri-State Creation Care
(collectively referred to as ``Community Organizations'') (Comment 10);
Mid-Atlantic/Northeast Visibility Union (MANEVU) regional planning
organization (Comment 11); and National Parks Conservation Association,
Sierra Club, Environmental Law & Policy Center, Coalition to Protect
America's National Parks, Conservation Law Center, Save the Dunes, and
the Indiana Division of the Izaak Walton League of America
(collectively referred to as the
[[Page 3058]]
``Conservation Groups'') (Comments 12 through 23).
III. Summary of Public Comments and EPA's Responses
A. Comments Received
All comments received are included in the rulemaking docket for
this action. In the December 19, 2025, Response to Comments document
(RTC), which is included in the docket for this rulemaking, EPA
provides summaries of and detailed responses to all significant
comments that further explain the basis for our final action.
In addition to the request to extend the public comment period, EPA
received comments on the NPRM addressing several topics including, but
not limited to, additional emissions monitoring, increased public
engagement, climate resilience, visibility trends, public health,
economic benefits, enforceability of retirements, existing effective
controls, four-factor analyses,\2\ cost considerations, Best Available
Retrofit Technology (BART), and impacts on local communities.
Additionally, EPA received several comments regarding EPA's URP
policy.\3\
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\2\ 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.
\3\ A change in Agency policy was introduced in the approval of
West Virginia's regional haze plan. See the April 18, 2025, (90 FR
16478) proposed rule) and the July 7, 2025, (90 FR 29737) final
rule.
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EPA acknowledges the seven comments that were generally supportive
of the proposed action and EPA's URP policy from Kurtis K. (Comment 2),
two anonymous commenters (Comments 3-4), IDEM (Comment 6); PGen
(Comment 7), Utilities for Reasonable Progress (Comment 8), as well as
OVEC and IKEC (Comment 9). Comments received from the Community
Organizations, MANEVU, and the Conservation Groups were generally
opposed to EPA's proposed action: Comments 10--23. The comments, while
summarized below, are available in full in the docket for this
rulemaking and are addressed in EPA's December 19, 2025, RTC. The
comments and EPA's responses summarized here are divided into two
sections for those that are and are not specific to EPA's URP policy.
B. Comments and Responses That Are Not Specific to EPA's URP Policy
Comment and Response 2: Comments from Kurtis K., while supportive
of EPA's proposed action, suggested additional emissions monitoring at
three facilities and increased public engagement.
As addressed in the RTC, EPA notes that the type of emissions
monitoring suggested is already provided for in the federally
enforceable title V permits and considered in the visibility modeling
efforts for the three facilities mentioned in the comment. As to
providing for public engagement after SIP implementation, EPA notes
that the RHR provides for public comment on SIP revisions and the
progress of the SIP, generally every five years.
Comments and Responses 3, 4, 6, 7, 8, and 9: Comments received from
two anonymous commenters, IDEM, PGen, Utilities for Reasonable
Progress, as well as OVEC and IKEC supported EPA's proposed action. EPA
acknowledges their support for EPA's proposed approval.
Comment and Response 10: The Community Organizations asserted that
EPA's proposed approval will allow pollution to continue harming the
air quality, public health, and economy of local and national parks and
communities.
As addressed in the RTC, Indiana has taken appropriate steps to
reduce pollution that affects air quality in the affected Class I
areas, including meaningful sulfur dioxide (SO<INF>2</INF>) and
nitrogen oxides (NO<INF>X</INF>) emission reductions since the
beginning of the second implementation period in 2019. Most of these
emissions reductions have already occurred during the second
implementation period and will continue to improve visibility in all
Class I areas affected by emissions from Indiana. EPA notes that the
visibility program prescribed by CAA sections 169A and 169B and
implemented in 40 CFR 51.308 is not a public health-based program, and
impacts on park tourism and local economies are not considerations
within the Regional Haze statute or rule.
Comment and Response 11: MANEVU raised several items for EPA's
consideration relating to changing circumstances since the time that
MANEVU sent its ``Asks'' to Indiana on November 5, 2021, during the
State's regional haze planning efforts. MANEVU observed that the Lake
Michigan Air Directors Consortium (LADCO) has documented that modeled
levels of nitrate in the winter have apparently been underestimated,
and that declining trends in visibility impairment appear to have
``flattened'' in recent years. As a result, MANEVU asserted that
additional measures will be needed in the future ``to reinvigorate
robust visibility improvements.''
As discussed in the RTC, EPA provides further explanation of
LADCO's modeling and notes that MANEVU did not address a specific
regulation or provision in question or recommend a different action on
Indiana's 2021 SIP submission from what EPA proposed.
Comment and Response 12: The Conservation Groups assert that
reducing haze pollution from Indiana facilities will improve visibility
in Class I areas \4\ and result in economic, public health, and
environmental benefits.
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\4\ 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''.
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As addressed in the RTC, concerns regarding public health, park
visitation, and local economies are not considerations within the
Regional Haze statute or rule.
Comment and Response 13: The Conservation Groups argue that EPA's
proposal to approve the Indiana SIP Revision violates the CAA and RHR.
In this regard, the Conservation Groups assert: (a) that EPA's reliance
on permit limits and consent decrees, past emission reductions, and
ongoing emission reductions to approve Indiana's 2021 SIP Revision is
arbitrary and capricious; and (b) that Indiana failed to include
federally enforceable measures in the 2021 SIP Revision for source
retirements.
As detailed in the RTC, EPA disagrees with the Conservation Groups'
assertions. Indiana did not rely on any planned EGU retirements, past
emission reductions, reductions in utilization, or ongoing emission
reductions that are not already federally enforceable as necessary to
make reasonable progress in the second implementation period. As such,
Indiana did not request any additional measures for the second
implementation period be incorporated into the regulatory portion of
Indiana's SIP at 40 CFR 52.770.
Comment and Response 14: The Conservation Groups assert that
Indiana unreasonably refused to conduct four-factor analyses for
sources that the State claimed are effectively controlled. The
Conservation Groups argue that neither the CAA nor the RHR allows
States to
[[Page 3059]]
eliminate sources from the four-factor statutory analysis on the basis
that they are effectively controlled. The Conservation Groups contend
that Indiana's demonstrations of existing effective controls are flawed
and that reasonable controls or upgrades are available for these
facilities at some of the State's largest sources of regional haze-
causing emissions, including Duke-Gibson, Alcoa-Warrick Power Plant,
AEP-Rockport, IKEC-Clifty Creek, and Duke-Cayuga.
As further discussed in the RTC, EPA addresses this comment as well
as comments regarding each of these five facilities below under
Comments and Responses 14a to 14f, respectively.
Comment and Response 14a: Existing Effective Control
Demonstrations. As described in more detail in the RTC, EPA disagrees
with the notion that CAA sections 169A(b)(2) and (g)(1) and the RHR
prohibit States from foregoing a four-factor analysis based on a State
determination that a source is effectively controlled. As outlined in
the 2017 RHR preamble, ``the EPA has consistently interpreted the CAA
to provide States with the flexibility to conduct four-factor analyses
for specific sources, groups of sources or even entire source
categories, depending on State policy preferences and the specific
circumstances of each State.'' \5\ However, within the bounds of the
flexibility afforded to States, EPA also stated that States must
``exercise reasoned judgment when choosing which sources, groups of
sources or source categories to analyze.'' \6\ In the 2019 Guidance,
section 3(f), EPA explained when it may be appropriate to forgo a four-
factor analysis for sources with existing effective control measures
and provided examples where a full four-factor analysis would likely
result in the conclusion that no further controls are necessary.\7\ EPA
evaluated Indiana's Regional Haze SIP submission and concludes that
IDEM's source selection methodology, thresholds, and justification for
not conducting a four-factor analysis on all sources for this second
implementation period are reasonable. EPA also concludes that IDEM
sufficiently demonstrated that the sources selected for further
evaluation at the facilities listed under this comment below are
effectively controlled for the second implementation period.
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\5\ 82 FR 3088, January 10, 2017.
\6\ 82 FR 3088, January 10, 2017.
\7\ See section 3(f) of EPA's ``Guidance on Regional Haze State
Implementation Plans for the Second Implementation Period,'' EPA
Office of Air Quality Planning and Standards, Research Triangle
Park, August 20, 2019 (2019 Guidance) which is publicly available at
<a href="https://www.epa.gov/sites/default/files/2019-08/documents/8-20-2019_-_regional_haze_guidance_final_guidance.pdf">https://www.epa.gov/sites/default/files/2019-08/documents/8-20-2019_-_regional_haze_guidance_final_guidance.pdf</a>.
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Comment and Response 14b: Duke-Gibson. The Conservation Groups
assert that excluding Duke-Gibson Unit 5 from LADCO's emissions
projections in the 2028 visibility modeling was arbitrary and unlawful
since there is no legal requirement preventing the unit from continuing
to operate beyond 2028. The Conservation Groups further state that the
existing NO<INF>X</INF> and SO<INF>2</INF> emission controls on Duke-
Gibson Units 1, 2, 3, 4, and 5 are underperforming and that upgrades to
the existing controls would likely be feasible and cost-effective.
As described in further detail in the RTC, EPA disagrees with this
comment and notes that the assumptions used in modeling future
projections were based on the best available information at the time.
Although there is no current legal obligation for Unit 5 to retire, EPA
continues to find that IDEM has sufficiently demonstrated that Units 1,
2, 3, 4, and 5 are effectively controlled for the second implementation
period and that a four-factor analysis would not likely result in the
conclusion that further controls are necessary for reasonable progress.
In this regard, consistent with the 2019 Guidance, IDEM showed that the
SO<INF>2</INF> emission rates for all units are below the 2012 Mercury
and Air Toxics Standards (MATS) for coal-fired EGUs. Additionally,
NO<INF>X</INF> emission rates are below the 0.08 pounds per million
metric British thermal units (lbs/MMBtu) level for EGUs with optimized
selective catalytic reduction (SCR) under the Revised Cross-State Air
Pollution Rule (CSAPR) Update,\8\ flue gas desulfurization (FGD)
control efficiencies are greater than 90 percent, and SCR control
efficiencies are greater than 80 percent.
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\8\ See 86 FR 23054, 23088, April 30, 2021.
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Comment and Response 14c: Alcoa-Warrick Power Plant. The
Conservation Groups argue that Indiana should conduct a four-factor
analysis on Alcoa-Warrick Power Plant's Units 1, 2, 3, and 4.
As described in further detail in the RTC, EPA disagrees with this
comment and notes that IDEM has sufficiently demonstrated that Alcoa-
Warrick Power Plant Units 1, 2, 3 and 4 are effectively controlled for
the second implementation period. All four units are subject to BART
emission limitations from the first implementation period on a
pollutant-specific basis and continue to operate BART controls. Thus,
as described in the 2019 Guidance, although BART-eligible sources
should not be categorically excluded from further analysis in each
planning period, the source is currently operating controls to meet
BART emission limits, and it is unlikely that there will be further
available reasonable controls. Based on the information provided in
Indiana's SIP submission and the BART analysis, IDEM appropriately
demonstrated that a full four-factor analysis would likely result in
the conclusion that no further controls are necessary.
Comment and Response 14d: AEP-Rockport. The Conservation Groups
state that the existing NO<INF>X</INF> and SO<INF>2</INF> emission
controls on AEP-Rockport Units 1 and 2 are underperforming and that a
four-factor analysis should have been performed.
As further explained in the RTC, EPA disagrees with this comment
and maintains that IDEM has sufficiently demonstrated that AEP-Rockport
MB1 and MB2 are effectively controlled for the second implementation
period. In this regard, as described in the 2019 Guidance, IDEM showed
that with the recent installation of enhanced dry sorbent injection
(DSI) and SCR on MB2, the SO<INF>2</INF> emission rates for both
boilers are below the 0.2 lbs/MMBtu level for coal-fired EGUs in the
2012 MATS, and NO<INF>X</INF> emission rates are below the 0.08 lbs/
MMBtu level for units with SCR under the Revised CSAPR Update.
Comment and Response 14e: IKEC-Clifty Creek. The Conservation
Groups argue that additional cost-effective NO<INF>X</INF> and
SO<INF>2</INF> emission controls are likely to exist for IKEC-Clifty
Creek's six EGUs and that a four-factor analysis should have been
performed.
As described in greater detail in the RTC, EPA disagrees with this
comment and maintains that IDEM has sufficiently demonstrated that
IKEC-Clifty Creek Units 1-6 are effectively controlled for the second
implementation period as described in the 2019 Guidance, with FGDs
achieving 98 percent SO<INF>2</INF> control efficiency, SCRs and
overfire air achieving 70-90 percent NO<INF>X</INF> control on an
annual basis, and actual SO<INF>2</INF> emission rates for all six
units below the 2012 MATS level for coal-fired EGUs. Additionally, IDEM
has thoroughly documented NO<INF>X</INF> emissions that are
progressively constrained on an annual basis under the Revised CSAPR
Update Rule and the lack of potential controls for NO<INF>X</INF> that
IDEM considers cost-effective.
Comment and Response 14f: Duke-Cayuga. The Conservation Groups
argue that Indiana should be required to conduct a four-factor analysis
on Duke-Cayuga's two coal-fired EGUs Units 2
[[Page 3060]]
and 3 and that cost-effective options for additional NO<INF>X</INF>
emission controls would likely be cost-effective.
As explained in greater detail in the RTC, EPA disagrees with this
comment and maintains that IDEM has sufficiently demonstrated that
Duke-Cayuga Units 2 and 3 are effectively controlled for the second
implementation period. In this regard, as described in the 2019
Guidance, IDEM documented FGD systems achieving 95 percent control
efficiency, SO<INF>2</INF> rates that are below MATS for coal fired
units, and NO<INF>X</INF> emissions that are controlled by low-
NO<INF>X</INF> burners with separated over fire air and SCR achieving
88 percent control efficiency.
Comment and Response 15: The Conservation Groups contend that EPA
neglected its duty to review Indiana's source-specific four-factor
analyses. The Conservation Groups also argue that IDEM did not
rigorously analyze controls that the Conservation Groups maintain are
likely cost effective and, in so doing, did not appropriately require
additional control measures for any of the nine sources IDEM evaluated
to reduce emissions to make reasonable progress. The nine sources
include: (a) Lone Star Industries, Inc.-Greencastle dba Buzzi Unicem
USA; (b) Cleveland-Cliffs Steel, LLC-Indiana Harbor East and Indiana
Harbor West; (c) Cleveland-Cliffs Steel, LLC-Burns Harbor; (d) U.S.
Steel-Gary Works; (e) SABIC Innovative Plastics-Mt. Vernon, LLC; (f)
Warrick Newco LLC, formerly Alcoa Warrick Operations, LLC; (g)
Cokenergy, LLC; and (h) Heidleberg Materials US Cement LLC-Mitchell
Plant, formerly Lehigh Cement Company, LLC-Mitchell Plant.
As further explained in the RTC and as outlined in our NPRM and
April 22, 2025, TSD, EPA carefully evaluated Indiana's 2021 SIP
submission along with the comments from the Federal Land Managers
(FLMs) consultation and the State's public notice period, as well as
the State's responses to those comments. Based on the complete record,
EPA explained its decision to approve the SIP and took comment on the
proposed approval in the NPRM. EPA recognizes that IDEM worked directly
with the sources to conduct extensive site-specific technical work and
provide full documentation in support of its 2021 SIP to submit
complete four-factor analyses evaluating potential feasible and
reasonable control measures. In the NPRM and April 22, 2025, TSD, EPA
documented the existing controls, permit limitations, control options,
potential reductions, and potential costs for new controls that the
State relied upon in its four-factor analyses. In making its
determinations, IDEM properly considered the four statutory factors
along with projected 2028 visibility conditions for Class I areas
influenced by emissions from Indiana sources, emission reductions that
have occurred, and current control technologies in concluding no
additional controls were necessary to make reasonable progress.
Comment and Response 15a: Lone Star Industries, Inc.-Greencastle
dba Buzzi Unicem USA. The Conservation Groups state that IDEM's four-
factor analysis should have also evaluated SCR and lacked documentation
with the consideration of selective non-catalytic reduction for the
remaining useful life and interest rate in the cost calculations. The
Conservation Groups also contend that Indiana reached its conclusions
before the FLM consultation period and the public comment period.
As explained in detail in the RTC, EPA disagrees and notes that
IDEM did consider SCR in determining feasible control options. For each
control option evaluated, IDEM also provided extensive site-specific
documentation, including an explanation of the control technologies,
applicability, the limitations, expected removal efficiencies and
performance, as well as considerations for cost analyses for both
capital and operating costs and the relationship with reduction
efficiency.
Further, EPA disagrees with the Conservation Groups' allegations
that IDEM failed to incorporate FLM comments in its planning. EPA
believes IDEM genuinely and consistently portrayed its intentions by
clearly stating, ``it is important to address the FLMs comments as
thoroughly as possible to show that Indiana has seriously evaluated the
selected sources . . .'' \9\ EPA finds in this final rulemaking that
Indiana has satisfied the consultation and public notice requirements
of 40 CFR 51.102 and 51.308(i).
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\9\ Appendix P, p.3 of Indiana's 2021 SIP submission.
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Comment and Response 15b: Cleveland-Cliffs Steel, LLC-Indiana
Harbor East and Indiana Harbor West. In addition to the potential
controls examined in the four-factor analyses, the Conservation Groups
assert that IDEM should have evaluated additional emission controls for
the No. 5 Boiler House, Blast Furnace Stoves, Lime Kilns, and Walking
Beam Furnaces.
As described in further detail in the RTC, EPA disagrees with this
comment and notes that IDEM explained that Indiana Harbor East and
Indiana Harbor West identified control measures that were commercially
demonstrated on similar applications by searching air permits for other
iron and steel mills and other similar sources, the Nucor 2010 Best
Available Control Technology (BACT) analysis,\10\ as well as EPA's
Reasonably Available Control Technology (RACT), BACT, and Lowest
Achievable Emission Rate (LAER) Clearinghouse (RBLC).\11\ The RBLC
contains case-specific information on the ``best available'' air
pollution technologies that have been required to reduce the emission
of air pollutants from stationary sources. EPA maintains that IDEM's
approach produced an extensive list of control measures relevant to the
industry that had proven effective for certain applications and
identified a thorough set of control measures for evaluation.
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\10\ Nucor Steel Louisiana ``Consolidated Environmental
Management Inc.-Nucor Steel Louisiana, Best Available Control
Technology Analyses,'' March 1, 2010 (Nucor 2010 BACT).
\11\ EPA's RBLC is available through <a href="https://cfpub.epa.gov/rblc/index.cfm?action=Home.Home">https://cfpub.epa.gov/rblc/index.cfm?action=Home.Home</a> and <a href="https://www.epa.gov/catc/ractbactlaer-clearinghouse-rblc-basic-information">https://www.epa.gov/catc/ractbactlaer-clearinghouse-rblc-basic-information</a>.
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Regarding the cost analyses, IDEM and Cleveland-Cliffs Steel, LLC
provided a thorough explanation, justification, and documentation of
the cost parameters used in four-factor analyses as well as in its
responses to the comments from the FLMs that appropriately considered
site-specific factors. The Conservation Groups provided their own cost
calculations, but their estimates did not include site-specific
factors.
Comment and Response 15c: Cleveland-Cliffs Steel, LLC-Burns Harbor.
In addition to the emission control options examined in the four-factor
analysis, the Conservation Groups assert that IDEM should have
evaluated additional options for the Coke Batteries, Coke Ovens, and
Coke Oven Gas Export Line as well as provided better documentation for
parameters such as the remaining useful life and interest rate in the
cost calculations.
As discussed further in the RTC, EPA disagrees with this comment
and notes that IDEM provided sufficient documentation and identified
control measures that were commercially demonstrated on similar
applications by searching air permits for other iron and steel mills
and other similar sources, the Nucor 2010 BACT analysis, as well as
EPA's RBLC. EPA notes that IDEM's approach produced an extensive list
of control measures relevant to the industry that had proven effective
for certain applications and identified a thorough set of control
measures for evaluation. For the Coke Batteries, Coke Ovens, and Coke
Oven Gas Export Line,
[[Page 3061]]
the four-factor analysis search found no examples where SCR or wet
scrubbers had been installed and successfully operated to control
NO<INF>X</INF> and SO<INF>2</INF> emissions under similar physical and
operating conditions to those at Burns Harbor.\12\
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\12\ For lists obtained during the search of EPA's RBLC and air
permits, see appendices A and B of appendix B of appendix I to
Indiana's 2021 SIP submission.
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Although the Conservations Groups assert that the cost analyses
lacked documentation, IDEM and Cleveland-Cliffs Steel, LLC provided a
thorough explanation, justification, and documentation of the cost
parameters used in the four-factor analysis and in its responses to the
comments from the FLMs.
Comment and Response 15d: U.S. Steel-Gary Works. In addition to the
emission control options examined in the four-factor analysis, the
Conservation Groups assert that IDEM should have evaluated SCR for the
84'' Strip Mill Reheat Furnace and used different values in the cost
analysis for low-NO<INF>X</INF> burners on the Waste Heat Boilers 1 and
2.
As described in more detail in the RTC, EPA disagrees with this
comment. EPA notes that IDEM identified control measures that were
commercially demonstrated on similar applications by searching air
permits for other iron and steel mills and other similar sources, the
Nucor 2010 BACT analysis, and EPA's RBLC. However, IDEM's search did
not find a SCR that had been installed and successfully operated on a
similar source and under similar operating conditions as Gary Works.
Regarding the cost analyses for low-NO<INF>X</INF> burners for
Waste Heat Boiler 1, although the Conservations Groups provided their
own cost calculations using different parameters, EPA notes that IDEM
and U.S. Steel-Gary Works provided a thorough explanation,
justification, and documentation of the cost parameters used in the
four-factor analysis \13\ and in its responses to the comments from the
FLMs \14\ that appropriately considered site-specific factors that the
Conservation Groups' estimates did not.
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\13\ See section 13.10, 13.11, 13.12 and appendices I and J of
Indiana's 2021 SIP submission.
\14\ See appendix S to Indiana's 2021 SIP submission.
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Comment and Response 15e: SABIC Innovative Plastics-Mt. Vernon,
LLC. The Conservation Groups assert that IDEM's four-factor analysis
lacked consideration of all emission sources besides the Co-generation
Unit and COS Vent Oxidizer as well as appropriate assumptions for costs
and remaining useful life.
As detailed further in the RTC, EPA disagrees with this comment and
notes that of the emission sources listed in the facility's title V
permit,\15\ the Co-generation Unit accounted for the largest portion of
the facility's total potential to emit NO<INF>X</INF> at 39 percent.
Based on this, EPA agrees that IDEM appropriately focused its
evaluation of potential emission reduction for NO<INF>X</INF> on the
Co-generation Unit rather than the emissions from the other boilers and
units. Although the Conservation Groups assert that IDEM did not
provide underlying calculations and supporting information, EPA notes
that the four-factor analysis provided a solid basis for calculating
the total capital investment and cost effectiveness and documentation
was provided in Section 15 and appendices I and J of Indiana's 2021 SIP
submission.
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\15\ Title V Permit 129-45722-00002 for SABIC Innovative
Plastics-Mt. Vernon, LLC issued June 16, 2023, is publicly available
at <a href="https://permits.air.idem.in.gov/45722f.pdf">https://permits.air.idem.in.gov/45722f.pdf</a>.
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Comment and Response 15f: Warrick Newco LLC, formerly Alcoa Warrick
Operations, LLC. The Conservation Groups assert that the four-factor
analysis should have evaluated NO<INF>X</INF> emissions as well as
SO<INF>2</INF> emissions and provided better documentation for figures
used in the cost calculations.
As discussed in further detail in the RTC, EPA disagrees with this
comment and notes that NO<INF>X</INF> emissions from Alcoa Warrick
Operations, LLC represented the lowest levels of all the sources that
IDEM evaluated for a four-factor analysis. As such, IDEM's decision at
the time to focus resources on addressing potential controls in the
second implementation period for only SO<INF>2</INF> was well reasoned.
EPA also determined that IDEM provided sufficient relevant
documentation for the economic and emissions information used in the
four-factor analysis.
Comment and Response 15g: Cokenergy, LLC. The Conservation Groups
claim that the four-factor analysis was not a four-factor analysis, but
rather a recitation of studies and projects, and should have also
evaluated DSI and upgrades to other existing systems.
As further addressed in the RTC, EPA disagrees with this comment
and notes that the summaries of the previous studies and projects
served to develop a set of technically feasible control options for
evaluation and that the four-factor analysis then addressed each of the
statutory four factors in turn. Although the Conservation Groups assert
that several other specific options should have been addressed, many of
those suggested by the Conservation Groups were considered during the
course of the studies mentioned above, including evaluations of
installing or upgrading DSI, spray dryer absorbers, and atomizers. EPA
notes that these options, along with the other options evaluated,
represented a reasonable selection of control options.
Comment and Response 15h: Heidleberg Materials US Cement LLC-
Mitchell Plant, formerly Lehigh Cement Company, LLC-Mitchell Plant. The
Conservation Groups note that IDEM selected this source for a four-
factor analysis but did not complete one.
As described in additional detail in the RTC, EPA notes that,
pursuant to an amended Federal consent decree,\16\ Lehigh will be
permanently ending operations of Kilns 1, 2, and 3 by the end of 2025.
In the future, Lehigh will be installing and operating SCR and meeting
the NSPS for Portland Cement Plants (40 CFR 60, subpart F) for any new
kilns.
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\16\ See USA, State of Indiana, State of Iowa, State of
Maryland, State of New York, Pennsylvania Department of
Environmental Protection, Jefferson County Board of Health, and Bay
Area Air Quality Management District v. Lehigh Cement Company, LLC
and Lehigh White Cement Company, LLC, Civil Action No. 5:19-cv-
05688-JFL in United States District Court, Eastern District of
Pennsylvania. The initial and amended consent decrees are available
in the docket and at <a href="https://www.justice.gov/enrd/consent-decree/file/1223121/dl">https://www.justice.gov/enrd/consent-decree/file/1223121/dl</a>; <a href="https://www.justice.gov/enrd/consent-decree/file/1352971/dl">https://www.justice.gov/enrd/consent-decree/file/1352971/dl</a>.
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Comment and Response 16: The Conservation Groups argue that source-
specific BART determinations in the first implementation period need to
be reassessed. Under 42 U.S.C. 7491(b)(2)(A), the Conservation Groups
state that the CAA established BART as a mandatory part of ``each
applicable implementation plan'' for ``each'' BART-eligible source that
emits ``any'' air pollutant which may cause or contribute to ``any''
impairment of visibility in ``any'' Class I area.
As explained further in the RTC, EPA disagrees that States are
required to conduct BART analyses anew in the second regional haze
implementation period and onward. Specifically, EPA disagrees that its
second implementation period regulations require a BART analysis for
second implementation period SIPs. Pursuant to 40 CFR 51.308(e)(5),
once Indiana satisfied the BART requirements in the first
implementation period, Indiana's BART-eligible sources were then
subject to the long-term strategy requirements in 40 CFR 51.308(f) for
the second
[[Page 3062]]
implementation period. As stated throughout our proposal and this final
action, EPA finds that Indiana properly met the long-term strategy
requirements of 40 CFR 51.308(f) in the second implementation period.
Comment and Response 17: The Conservation Groups assert that EPA
should analyze the impact of Indiana regional haze pollution on local
communities since the same pollutants contributing to regional haze
also contribute disparately to public health impacts on people residing
closest to the sources. The Conservation Groups state that people
living in these communities tend to be exposed to higher levels of
particulate matter and NO<INF>X</INF> and tend to have less access to
quality health care to treat the impacts of environmental pollution.
As discussed in more detail in the RTC, with respect to public
health concerns, the primary national ambient air quality standards
provide public health protection. In contrast, the visibility program,
prescribed by CAA sections 169A and 169B and implemented in 40 CFR
51.308, is not a health-based program. EPA is acting upon Indiana's
2021 Regional Haze SIP submission as required by regional haze
regulations at 40 CFR 51.308.
Comment and Response 23: The Conservation Groups commented that EPA
must withdraw its proposal to approve Indiana's 2021 SIP Revision and
disapprove it.
For the reasons stated in the NPRM, EPA's April 22, 2025, TSD,
EPA's December 19, 2025, RTC, this notice of final rulemaking, and the
foregoing summary of responses to comments in this docket, EPA
disagrees that Indiana failed to satisfy the requirements of the CAA
and RHR. EPA also disagrees that EPA's proposed approval of Indiana's
2021 SIP Revision was fundamentally flawed in such a way as to make it
ineffective at achieving reasonable progress in the second
implementation period. Thus, as proposed in the NPRM, EPA is finalizing
its approval of Indiana's 2021 SIP Revision as satisfying the
applicable requirements under the CAA and RHR for the program's second
implementation period.
C. Comments and Responses That Are Specific to EPA's URP Policy
EPA received several comments regarding EPA's URP policy. Comments
from IDEM (Comment 6), PGen (Comment 7), Utilities for Reasonable
Progress (Comment 8), and OVEC and IKEC (Comment 9) were supportive of
EPA's URP policy. Comments from the Community Organizations (Comment
10b), MANEVU (Comment 11a) and the Conservation Groups (Comments 18-22)
were opposed to EPA's URP policy.
In this final action, EPA is affirming that it is now the Agency's
policy that, where visibility conditions for a Class I Federal area
impacted by a State are below the URP and the State has considered the
four statutory factors, the State will have presumptively demonstrated
reasonable progress for the second implementation period for that area.
EPA acknowledges that this final action reflects a change in policy as
to how the URP should be used in the evaluation of regional haze second
implementation period SIPs but believes that this policy better aligns
with the purpose of the statute and RHR: achieving ``reasonable''
progress towards natural visibility.
As described in the approval of West Virginia's regional haze plan
(90 FR 29737, July 7, 2025), EPA has discretion and authority to change
its policy. In FCC v. Fox Television Stations, Inc., the U.S. Supreme
Court plainly stated that an agency is free to change a prior policy
and ``need not demonstrate . . . that the reasons for the new policy
are better than the reasons for the old one; it suffices that the new
policy is permissible under the statute, that there are good reasons
for it, and that the agency believes it to be better.'' 556 U.S. 502,
515 (2009) (referencing Motor Vehicle Mfrs. Ass'n of United States,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)). See also
Perez v. Mortgage Bankers Assn., 135 S. Ct. 1199 (2015).
The Class I areas impacted by emissions from Indiana sources are
all below the 2028 URP, and IDEM's SIP submission demonstrated that the
State took into consideration the four reasonable progress factors
listed in CAA 169A(g)(1) \17\ with respect to an adequate number of
emissions sources. Thus, EPA determines that Indiana's SIP revision is
fully approvable under the Agency's new URP policy. Indeed, we think
this policy better aligns with the statutory goal because it recognizes
the considerable improvements in visibility impairment that have been
made by a wide variety of State and Federal programs in recent decades.
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\17\ The four statutory factors required to be taken into
consideration in determining reasonable progress are: the costs of
compliance, the time necessary for compliance, and the energy and
non-air quality environmental impacts of compliance, and the
remaining useful life of any existing source subject to such
requirements. CAA section 169(g)(1).
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In developing the regulations required by CAA section 169A(b), EPA
established the concept of the URP for each Class I area. The URP is
determined by drawing a straight line from the measured 2000 to 2004
baseline conditions (in deciviews) for the 20 percent most impaired
days at each Class I area to the estimated natural conditions (in
deciviews) for the 20 percent most impaired days in 2064. From this
calculation, a URP value can be calculated for each year between 2004
and 2064. EPA developed the URP to address the diverse concerns of
Eastern and Western States and account for the varying levels of
visibility impairment in Class I areas around the country while
ensuring an equitable approach nationwide. For each Class I area,
States must calculate the URP for the end of each planning period
(e.g., in 2028 for the second implementation period).\18\ 40 CFR
51.308(f)(1)(vi)(A). States may also adjust the URP to account for
impacts from anthropogenic sources outside the United States and/or
impacts from certain wildland prescribed fires. 40 CFR
51.308(f)(1)(vi)(B). Then, for each Class I area, States must compare
the reasonable progress goal (RPG) for the 20 percent most impaired
days to the URP for the end of the planning period. If the RPG is above
the URP, then an additional ``robust demonstration'' requirement is
triggered for each State that contributes to that Class I area. 40 CFR
51.308(f)(3)(ii)(B).
---------------------------------------------------------------------------
\18\ We note that RPGs are a regulatory construct that we
developed to address the statutory mandate in CAA section
169B(e)(1), which required our regulations to include ``criteria for
measuring `reasonable progress' toward the national goal.'' Under 40
CFR 51.308(f)(3)(ii), RPGs measure the progress that is projected to
be achieved by the control measures a State has determined are
necessary to make reasonable progress. Consistent with the 1999 RHR,
the RPGs are unenforceable, though they create a benchmark that
allows for analytical comparisons to the URP and mid-implementation-
period course corrections if necessary. 82 FR 3091-3092 (January 10,
2017).
---------------------------------------------------------------------------
In the 2017 RHR Revisions, EPA addressed the role of the URP as it
relates to a State's development of its second implementation period
SIP. 82 FR 3078 (January 10, 2017). Specifically, in response to
comments suggesting that the URP should be considered a ``safe harbor''
that relieves States of any obligation to consider the four statutory
factors, EPA explained that the URP was not intended to be such a safe
harbor. Id. at 3099. ``Some commenters stated a desire for
corresponding rule text dealing with situations where RPGs are equal to
(`on') or better than ('below') the URP or glidepath. Several
commenters stated that the URP or glidepath should be a `safe harbor,'
opining that States should be permitted to analyze whether projected
visibility
[[Page 3063]]
conditions for the end of the implementation period will be on or below
the glidepath based on on-the-books or on-the-way control measures, and
that in such cases a four-factor analysis should not be required.'' Id.
Other comments indicated a similar approach, such as ``a somewhat
narrower entrance to a `safe harbor,' by suggesting that if current
visibility conditions are already below the end-of-planning-period
point on the URP line, a four-factor analysis should not be required.''
Id. EPA stated in its response that we did not agree with either of
these recommendations. ``The CAA requires that each SIP revision
contain long-term strategies for making reasonable progress, and that
in determining reasonable progress States must consider the four
statutory factors. Treating the URP as a safe harbor would be
inconsistent with the statutory requirement that States assess the
potential to make further reasonable progress towards natural
visibility goal in every implementation period.'' Id.
Importantly, EPA's recently adopted policy does not make the URP a
safe harbor. The policy merely creates a presumption that the State's
second implementation period SIP is making reasonable progress for a
Class I Federal Area if the State has taken into consideration the four
statutory factors of 169A(g)(1) and that area is below the URP. This is
consistent with the CAA and RHR.
Comment and Response 11a: Instead of relying on the RPGs, MANEVU
asserts EPA's URP policy is not permissible and that EPA is now using
the URP as the determinative metric, to ignore the extensive work of
the States, the FLMs, and the public in developing the RPGs.
As discussed further in the RTC, EPA disagrees with MANEVU's
comment. EPA's URP policy does not ignore the results of a State's
four-factor analysis if a Class I area is below the URP. Consistent
with EPA's discussion under the preamble of the 2017 RHR, the URP
continues to serve as a regulatory planning metric to inform States'
decision making when considering the four statutory factors. EPA's URP
policy recognizes the considerable improvements in visibility
impairment that have been made by State and Federal programs resulting
from decades of work and interaction between members of State and
Federal agencies and the public.
Comment and Response 18: The Conservation Groups argue that EPA's
URP Policy violates the CAA's visibility provisions. The Conservation
Groups raise several issues pertaining to EPA's URP policy: (a) EPA's
URP policy violates the plain language of the CAA, (b) EPA's
contemporaneous understanding of the CAA reflects the best reading of
the statute, (c) the context of the CAA's visibility provisions
confirms the best reading of the statute, and (d) the purpose of the
CAA's visibility provisions confirms the best reading of the statute.
EPA disagrees with each of these comments, including the
Conservation Groups' position that the URP policy articulated in our
proposed approval of Indiana's regional haze SIP submission is
inconsistent with the CAA. The Conservation Groups' reading of the
statute is not the best, and they misconstrue the recently adopted
policy in several ways. EPA notes that the comments and responses on
each above point are presented in detail in the RTC document.
EPA's new URP policy is consistent with the CAA. Pursuant to CAA
169A(a)(4), Congress explicitly delegated to EPA the authority to
promulgate regulations regarding reasonable progress towards meeting
the national goal. In determining the measures necessary to make
reasonable progress, Congress mandated ``tak[ing] into consideration
the cost of compliance, the time necessary for compliance, and the
energy and nonair quality environmental impacts of compliance, and the
remaining useful life of any existing source subject to such
requirement.'' CAA 169A(g)(1).
EPA emphasizes that just because a Class I area is below the URP
does not mean that a State is relieved of its obligations under the CAA
and the RHR to make reasonable progress. In other words, the URP is not
a ``safe harbor,'' as that phrase has sometimes been used, because EPA
still must review a State's determination whether additional control
measures are necessary to make reasonable progress, determine whether
the State submitted those measures for incorporation into the SIP, and
evaluate whether the measures are consistent with other provisions in
the CAA.
As required by the statute, Indiana took into consideration the
four statutory factors in CAA section 169A(g)(1) and determined that no
additional controls were necessary to make reasonable progress at the
sources selected. CAA section 169A(b)(2) only requires SIPs to include
``such emission limits, schedules of compliance and other measures as
may be necessary to make reasonable progress'' (emphasis added). IDEM
concluded that it was not necessary to incorporate any new emission
limits, schedules of compliance, or other measures into its SIP in
light of the progress already made.
Comments and Responses 10 and 19: Both the Community Organizations
and Conservation Groups argued that EPA's URP policy is inconsistent
with the RHR.
As discussed in the RTC, EPA disagrees with the commenters'
position that the URP policy is inconsistent with the RHR. This comment
tracks many of the issues commenters raised with respect to their
allegations that EPA's recently adopted URP policy is inconsistent with
the CAA. Under the URP policy, and consistent with 40 CFR 51.308(f)(2),
States are still required to identify measures necessary for reasonable
progress by considering the four statutory factors set forth in CAA
169A(g)(1) and to submit measures necessary for reasonable progress to
EPA to be reviewed for approvability into the SIP. The URP policy does
not create an exemption to either of these provisions.
Comment and Response 20: The Conservations Groups comment that
EPA's articulation and application of its new URP policy is unclear and
incoherent. In this regard, the Conservation Groups argue: (a) Mere
consideration of the four factors is inconsistent with the CAA and the
RHR and is fundamentally irrational, (b) EPA fails to explain why a
four-factor analysis must be rational when, under the URP policy, its
result does not matter and EPA does not substantively review it, and
(c) EPA further muddies the waters by considering other factors in an
arbitrary and capricious way.
As discussed in detail in the RTC for Responses 20a, 20b, and 20c,
EPA disagrees with the Conservation Groups' arguments mentioned above
regarding EPA's application of the URP policy being unclear and
incoherent. EPA's recently adopted policy is consistent with the CAA
and is not arbitrary or capricious. The Conservation Groups incorrectly
assert that the URP policy ignores the results of a State's four-factor
analysis if a Class I area is below the URP. Just because a Class I
area is below the URP does not mean that a State is relieved of its
obligations under the CAA and the RHR to make reasonable progress. EPA
must still review a State's determination whether additional control
measures are necessary to make reasonable progress, determine whether
the State submitted those measures for incorporation into the SIP, and
evaluate whether the measures are consistent with other provisions in
the CAA.
Comment and Response 21: The Conservation Groups assert that
[[Page 3064]]
announcing and applying EPA's new URP policy in state-specific regional
actions violates the procedural requirements of the CAA under 306(a)(2)
regarding consistency among Regional Offices in implementing the CAA.
The Conservation Groups argue that EPA's URP policy unlawfully departs
from national policy and is inconsistent with actions across EPA
regions.
EPA disagrees with the Conservation Groups' position here as
further explained in the RTC. EPA's change in policy is consistent with
FCC v. Fox Television, 556 U.S. 502 (2009). Under FCC v. Fox, an
agency's change in policy is permissible if the agency acknowledges the
change, believes it to be better, and ``show[s] that there are good
reasons for the new policy.'' 556 U.S. at 515. We stated our reasons
for implementing the recently adopted URP policy in the final action
approving the West Virginia SIP for the second implementation period.
90 FR 29737 (Jul. 7, 2025). The reasons for the recently adopted policy
were more fully articulated in section V, The EPA's Rationale for
Proposing Approval, of that proposal. 90 FR 16478 (Apr. 18, 2025).
Therefore, EPA has sufficiently justified the change in policy under
FCC v. Fox.
The decision in FCC v. Fox turned primarily on whether the FCC's
change in policy would lead to the FCC ``arbitrarily punishing parties
without notice of the potential consequences of their action.'' 556
U.S. at 517. The changed policy is prospective, which addresses the
primary concern in FCC v. Fox. Additionally, the recently adopted URP
policy ``aligns with the purpose of the statute and RHR, which is
achieving `reasonable' progress, not maximal progress, toward Congress'
natural visibility goal.'' 90 FR 16478, at 16483. Furthermore, we note
that the legislative history of CAA section 169A is consistent with our
change in policy. The reconciliation report for the 1977 CAA amendments
indicates that the term ``maximum feasible progress'' in section 169A
was changed to ``reasonable progress'' in the final version of the
legislation passed by both chambers. See Legislative History of the CAA
Amendments of 1977 Public Law 95-95 (1977), H.R. Rep. No. 95-564, at
535.
EPA notes that EPA's Regional Consistency regulations at 40 CFR
part 56, and in particular 40 CFR 56.5(b), are not relevant to this
action. 40 CFR 56.5(b) requires that a ``responsible official in a
Regional office shall seek concurrence from the appropriate EPA
Headquarters office on any interpretation of the Act, or rule,
regulation, or program directive when such interpretation may result in
application of the act or rule, regulation, or program directive that
is inconsistent with Agency policy'' (emphasis added). As we expressly
indicated in the proposal for this action, the approval is consistent
with the change in agency policy, first announced in Air Plan Approval;
West Virginia; Regional Haze State Implementation Plan for the Second
Implementation Period. 90 FR 16478 (Apr. 18, 2025). Therefore, there is
no obligation under the EPA's Regional Consistency regulations for
anyone in the region to seek concurrence from EPA Headquarters to take
action consistent with EPA policy. The lack of relevance of these
regulations to this action accounts for the lack of materials related
to compliance with the Regional Consistency process in the docket for
this rulemaking.
The Conservation Groups also argue that EPA's URP policy
effectively revises the RHR and raises the question of whether it has
nationwide scope and effect.
EPA disagrees with the Conservation Groups' comment here as further
explained in the RTC. EPA notes that this action is ``locally or
regionally applicable'' under CAA section 307(b)(1) because it applies
only to a SIP submission from a single State, Indiana. See Oklahoma v.
EPA, 605 U.S. 609, 620 (2025) (a SIP is ``a state-specific plan'' and
``the CAA recognizes this limited scope in enumerating a SIP approval
as a locally or regionally applicable action''); see also, Am. Rd. &
Transp. Builders Ass'n, 705 F.3d 453, 455 (D.C. Cir. 2013) (describing
EPA action to approve a single SIP under CAA section 110 as the
``[p]rototypical'' locally or regionally applicable action).
Whether our proposal to approve Indiana's second implementation
period SIP relies on a new national policy has no bearing on the
applicability of EPA's final action. To determine whether an action is
``nationally applicable'' or ``locally or regionally applicable,''
``court[s] need look only to the face of the agency action, not its
practical effects . . . .'' EPA v. Calumet Shreveport Refining, L.L.C.,
605 U.S. 627, 642 (2025) (``[W]e determine an action's range of
applicability by `look[ing] only to the face of the [action], rather
than to its practical effects.' '') (quoting Am. Rd. & Transp. Builders
Ass'n, 705 F.3d at 456) and Oklahoma, 605 U.S. at 621-622 (basis for
EPA action is not relevant to determining its applicability); see also
Sierra Club v. EPA, 926 F.3d 844, 849 (D.C. Cir. 2019) and RMS of
Georgia, LLC v. EPA, 64 F.4th 1368, 1372 (11th Cir. 2023) (``our sister
circuits have established a consensus that we should begin our analysis
by analyzing the nature of the EPA's action, not the specifics of the
petitioner's grievance'').
Furthermore, the comments that claim the recently adopted URP
policy ``amend[s] the nationally applicable RHR'' are unsupported and
incorrect. This action simply applies our recently adopted policy
related to the URP in the context of EPA's evaluation of Indiana's
regional haze SIP submission. Because this action applies a recently
adopted policy to a SIP submission from Indiana alone, it is locally or
regionally, not nationally, applicable.
Comments that claim that EPA ``must'' publish a finding that this
action is ``based on a determination of nationwide scope [or] effect''
are also unsupported and incorrect. The Supreme Court has recognized
that ``[b]ecause the `nationwide scope or effect' exception can apply
only when `EPA so finds and publishes' that it does, EPA can decide
whether the exception is even potentially relevant.'' Calumet
Shreveport Refining, L.L.C., 605 U.S. at 646, citing Sierra Club v.
EPA, 47 F.4th 738, 746 (D.C. Cir. 2022). As the D.C. Circuit has also
stated, the ``EPA's decision whether to make and publish a finding of
nationwide scope or effect is committed to the agency's discretion and
thus is unreviewable.'' Sierra Club v. EPA, 47 F.4th at 745; see also
Texas v. EPA, 983 F.3d 826, 835 (5th Cir. 2020) (``when a locally
applicable action is based on a determination of nationwide scope or
effect, the EPA has discretion to select the venue for judicial
review'').
The Administrator has not made and published a finding that this
action is based on a determination of nationwide scope or effect.
Accordingly, any petition for review of this action must be filed in
the United States Court of Appeals for the appropriate regional
circuit.
Comment and Response 22: The Conservation Groups comment that
Indiana's 2021 SIP submission does not meet EPA's URP policy for
presumptive approval. As such, the Conservation Groups argue that
Indiana: (a) would not be able to meet the RHR monitoring requirements
without the IMPROVE network if its continued operation were threatened,
(b) relies on adjusted URP glidepaths that do not comply with the RHR,
and (c) ignores additional out-of-state Class I areas affected by
visibility impairing emissions from Indiana.
EPA disagrees with these comments as further discussed in the RTC.
Indiana
[[Page 3065]]
met the requirements of the recently adopted policy. First, the RHR
requires States to submit a long-term strategy that addresses regional
haze visibility impairment for each mandatory Class I Federal area
within the State and for each mandatory Class I Federal area located
outside the state that may be affected by emissions from the State. 40
CFR 51.308(f)(2); see also CAA 169A(b)(2). However, there is no
specific statutory or regulatory requirement to identify the precise
set of Class I areas that are affected by emissions from Indiana, and
there is no requirement to establish a source contribution threshold in
identifying those areas. In this case, Indiana identified affected out-
of-state Class I areas, none of which are above the 2028 URP.
EPA believes Indiana has reasonably documented its impacts to in-
state and out-of-state Class I areas, and they are not reasonably
anticipated to cause or contribute to any impairment in any area that
is above the URP.
In conclusion, IDEM took into consideration the four statutory
factors in CAA section 169A(g)(1) and determined that no additional
controls were necessary to make reasonable progress for the specific
sources selected for four-factor analyses. CAA section 169A(b)(2) only
requires SIPs to include ``such emission limits, schedules of
compliance and other measures as may be necessary to make reasonable
progress'' (emphasis added). IDEM concluded that it was not necessary
to incorporate any new emission limitations, schedules of compliance,
or other measures into its SIP for these sources. Thus, IDEM did not
ignore the results of its consideration of the four statutory factors;
rather, as supported by the recently adopted URP policy, the State
properly used the URP to inform its final decision making as to the
measures necessary to make reasonable progress in the second
implementation period.
D. EPA's Final Approval
EPA determines that Indiana reasonably considered the statutory and
regulatory requirements and appropriately determined what measures are
necessary for reasonable progress for the second implementation period.
As such, EPA finds that Indiana submitted a Regional Haze SIP revision
that meets all the regional haze requirements for the second
implementation period.
EPA concludes that Indiana's determinations of the measures
necessary for reasonable progress were based on a reasonable
consideration of the four statutory factors. IDEM thoroughly evaluated
and determined the emission reduction measures that are necessary to
make reasonable progress by considering the four statutory factors.
IDEM also documented large statewide emissions reductions achieved
during the second implementation period.
EPA is finalizing its approval of Indiana's December 29, 2021,
Regional Haze SIP submission for the second implementation period as
proposed.
IV. Final Action
For the reasons set forth in the June 18, 2025, NPRM, the April 22,
2025, TSD, the December 19, 2025, RTC document, and in this final rule,
EPA is approving the Regional Haze SIP revision for Indiana submitted
by IDEM on December 29, 2021, as satisfying the regional haze
requirements for the second implementation period contained in 40 CFR
51.308(f).
V. 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:
<bullet> 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);
<bullet> Is not subject to Executive Order 14192 (90 FR 9065,
February 6, 2025) because SIP actions are exempt from review under
Executive Order 12866;
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> 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.);
<bullet> 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);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a State program;
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
<bullet> 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 March 27, 2026. 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).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Sulfur oxides.
Dated: January 6, 2026.
Anne Vogel,
Regional Administrator, Region 5.
For the reasons stated in the preamble, title 40 CFR part 52 is
amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
[[Page 3066]]
0
2. In Sec. 52.770, amend the table in paragraph (e) by adding a new
entry for ``Regional Haze Plan for the Second Implementation Period''
after the entry for ``Regional Haze Plan'' to read as follows:
Sec. 52.770 Identification of plan.
* * * * *
(e) * * *
EPA-Approved Indiana Nonregulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
Title Indiana date EPA approval Explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Regional Haze Plan for the Second 12/29/2021 1/26/2026, 91 FR [insert Full approval.
Implementation Period. Federal Register page
where the document
begins].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 2026-01406 Filed 1-23-26; 8:45 am]
BILLING CODE 6560-50-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.