Air Plan Approval; Ohio; Withdrawal of Technical Amendment

ENVIRONMENTAL PROTECTION AGENCY <CFR>40 CFR Part 52</CFR> <DEPDOC>[EPA-R05-OAR-2020-0055; FRL-11687-01-R5]</DEPDOC> <SUBJECT>Air Plan Approval; Ohio; Withdrawal of Technical Amendment</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Environmental Protection Agency (EPA). <HD SOURCE="HED">ACTION:</HD> Proposed rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Environmental Protection Agency (EPA) is proposing to correct the November 19, 2020, removal of the Air Nuisance Rule (ANR) from the Ohio State Implementation Plan (SIP). This action is in response to a February 10, 2023, decision by the United States Court of Appeals for the Sixth Circuit to remand without vacatur EPA's removal of the ANR from the Ohio SIP. Because the Court did not vacate EPA's removal of the ANR, the ANR is currently not in Ohio's SIP. After reevaluating EPA's November 19, 2020, rulemaking, as directed by the Court, EPA is proposing to determine that its November 2020 final action was in error, and to correct that action by reinstating the ANR as part of the Ohio SIP. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments must be received on or before March 25, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Submit your comments, identified by Docket ID No. EPA-R05-OAR-2020-0055 at <E T="03">https://www.regulations.gov,</E> or via email to <E T="03">arra.sarah@epa.gov.</E> For comments submitted at <E T="03">Regulations.gov</E> , follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from <E T="03">Regulations.gov</E> . For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission ( <E T="03">i.e.</E> on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the <E T="02">FOR FURTHER INFORMATION CONTACT</E> section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit <E T="03">https://www2.epa.gov/dockets/commenting-epa-dockets.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Christos Panos, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-8328, <E T="03">panos.christos@epa.gov.</E> The EPA Region 5 office is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays and facility closures due to COVID-19. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. <HD SOURCE="HD1">I. Background</HD> <HD SOURCE="HD2">A. Procedural History</HD> Until EPA's November 2020 removal action, a version of the ANR had been part of the Ohio SIP since 1974. EPA approved Ohio rule AP-2-07, “Air pollution nuisances prohibited,” into the Ohio SIP on April 15, 1974 (39 FR 13542). Subsequently, Ohio made minor changes to the rule and submitted the amended rule, renumbered as Ohio Administrative Code (OAC) 3745-15-07, as a SIP revision. EPA approved the amended rule into the SIP on August 13, 1984 (49 FR 32182). OAC 3745-15-07 prohibits the “emission or escape into the open air from any source or sources whatsoever, of smoke, ashes, dust, dirt, grime, acids, fumes, gases, vapors, odors, or any other substances or combinations of substances, in such manner or in such amounts as to endanger the health, safety or welfare of the public, or cause unreasonable injury or damage to property.” In a proposed rule published on March 23, 2020 (85 FR 16309), EPA proposed to conclude that it had erred in originally approving the ANR into Ohio's SIP. In its justification, EPA noted that it had no information indicating that Ohio had relied on, or ever intended to rely on, the ANR for attainment or maintenance of any National Ambient Air Quality Standards (NAAQS). Further, in response to EPA's inquiry, Ohio informed EPA that it had not relied on the ANR for the purposes of planning, nonattainment designations, redesignation requests, maintenance plans, or determination of nonattainment areas or their boundaries under the Clean Air Act (CAA). Therefore, in the final rule published on November 19, 2020 (85 FR 73636), EPA concluded it had erred by including the ANR in Ohio's SIP and removed the ANR using the error-correction mechanism under the authority of section 110(k)(6) of the CAA, 42 U.S.C. 7410(k)(6). On January 19, 2021, environmental groups and private citizens petitioned the Sixth Circuit for review of EPA's November 19, 2020, removal of the ANR ( <E T="03">Sierra Club</E> v. <E T="03">EPA,</E> No. 21-3057). In briefing this matter before the Court, EPA argued that Petitioners did not have standing to bring this challenge. <E T="03">See</E> Brief for Respondents at 1, <E T="03">Sierra Club</E> v. <E T="03">EPA,</E> No. 21-3057 (6th Cir. Apr. 25, 2022). However, in the event that the Court found Petitioners did have standing, EPA requested a voluntary remand of the final rule, which was granted by the Court on February 10, 2023. EPA represented to the Court that such a remand would allow the Agency to consider: (1) whether the section 110(k)(6) error-correction mechanism was the most appropriate vehicle for removing the ANR from Ohio's SIP; and (2) whether EPA should have considered performing an “anti-backsliding” analysis under section 193 of the CAA, 42 U.S.C. 7515, concerning the removal of the nuisance rule from Ohio's SIP. <E T="03">Id.</E> at 23-24. In a declaration filed in the Sixth Circuit, EPA represented that, in the course of this reevaluation, it could supplement the administrative record with additional information and analysis, take and consider additional public comment, and provide additional explanation of its assessment of the challenged aspects of the final rule. <E T="03">See</E> “Declaration in Support of Request for Voluntary Remand” at para. 9, Brief for Respondents, <E T="03">Sierra Club</E> v. <E T="03">EPA,</E> No. 21-3057 (6th Cir. Apr. 25, 2022). EPA stated that, upon remand, it could also evaluate whether any aspects of the ANR could be included in the SIP if they met applicable requirements for the implementation, maintenance, and enforcement of the NAAQS. <E T="03">Id.</E> EPA committed to completing its reevaluation within 12 months. <E T="03">Id.</E> at para. 10. <HD SOURCE="HD2">B. Public Comments on EPA's Proposal To Remove the ANR</HD> During the public comment period for the March 23, 2020, proposed rule removing the ANR, EPA received comments presenting several opposing arguments. <SU>1</SU> <FTREF/> Commenters questioned whether EPA's section 110(k)(6) error-correction action was an appropriate mechanism to remove the ANR from the Ohio SIP. <E T="03">See</E> footnote 1, supra. The commenters asserted that EPA's approval of the ANR as part of the SIP was not an error and that EPA's use of error correction authority to remove the ANR from Ohio's SIP was unlawful. <E T="03">Id.</E> Commenters further asserted that EPA was required to adhere to the SIP revision process to remove the ANR from Ohio's SIP, which would include providing a demonstration pursuant to section 193 of the CAA that no backsliding would result from this change. <E T="03">Id.</E> <FTNT> <SU>1</SU>  The public comments are found in the rulemaking docket for EPA's proposed and final action removing the ANR from the Ohio SIP. Docket ID: EPA-R05-OAR-2020-0055, available at <E T="03">https://www.regulations.gov/docket/EPA-R05-OAR-2020-0055.</E> </FTNT> Commenters also asserted that EPA had failed to consider the impact of eliminating the only available pathway for Ohio residents to enforce the ANR on air quality and enforcement in Ohio. Therefore, the commenters maintained, the removal of the ANR from the SIP prevented local governments and non-governmental organizations, as well as affected Ohio communities, from directly enforcing the ANR where necessary to protect Ohioans' health, welfare, and property. The commenters further contended that individual Ohioans (as well as local governments) had relied, and were relying at the time of the error correction rulemaking, on the nuisance provision for Federal enforcement citizen suits under the CAA, and that the continued availability of such citizen suits was important for achieving environmental justice in the context of highly localized emissions in low-income areas and communities of color. <E T="03">See</E> footnote 1, supra. <HD SOURCE="HD2">C. The Sixth Circuit Opinion</HD> In its decision remanding EPA's removal of the ANR back to the Agency for further review, the Sixth Circuit cited several cases in which parties authorized to enforce Ohio's SIP provisions could and did bring enforcement actions for violations of the ANR (prior to EPA removing the rule from Ohio's SIP). <E T="03">E.g., Fisher</E> v. <E T="03">Perma-Fix of Dayton, Inc.</E> Np. 3:04-C-V-418, 2006 WL 212076 (S.D. Ohio Jan. 27, 2006); <E T="03">Sampson</E> v. <E T="03">SunCoke Energy,</E> No. 1:17-cv-00658 (S.D. Ohio). Slip op. at 5. The Court also noted Petitioners' past reliance on the ANR apart from actually bringing CAA litigation ( <E T="03">i.e.,</E> filing notices of intent to sue under the CAA). Slip ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 32k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━