Air Plan Approval; Ohio; Withdrawal of Technical Amendment

<RULE> ENVIRONMENTAL PROTECTION AGENCY <CFR>40 CFR Part 52</CFR> <DEPDOC>[EPA-R05-OAR-2020-0055; FRL-11687-02-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> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Environmental Protection Agency (EPA) is taking final action to correct a November 19, 2020, rulemaking removing 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 (Sixth Circuit or Court) 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, upon remand, EPA proposed 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. EPA proposed to take this action on February 22, 2024 and received both supportive and adverse comments. EPA is finalizing this action as proposed, and upon the effective date of this action, the ANR will be reinstated into the Ohio SIP. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This final rule is effective on February 20, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2020-0055. All documents in the docket are listed on the <E T="03">https://www.regulations.gov</E> website. Although listed in the index, some information is not publicly available, <E T="03">i.e.,</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 <E T="03">https://www.regulations.gov</E> 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 Christos Panos, at (312) 353-8328 before visiting the Region 5 office. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Christos Panos, Air and Radiation Division (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> </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> A detailed history of this matter is provided in EPA's February 22, 2024, 89 FR 13304, notice of proposed rulemaking (February 2024 Proposed Rule). It includes a discussion of EPA's previous rulemaking action to remove the ANR, OAC 3745-15-07, from the Ohio SIP, which EPA proposed on March 23, 2020, 85 FR 16309 (March 2020 Proposed Rule) and finalized on November 19, 2020, 85 FR 73636 (November 2020 Final Rule). That action relied on EPA's error-correction authority under Clean Air Act (CAA or Act) section 110(k)(6). In that action, EPA concluded that we had erred by approving the ANR into Ohio's SIP because we determined that the ANR was not relied upon by Ohio to demonstrate the implementation, maintenance, attainment, or enforcement of any National Ambient Air Quality Standard (NAAQS). During the public comment period for the March 2020 Proposed Rule to remove the ANR from the Ohio SIP, EPA received comments from the Sierra Club and other environmental groups, <SU>1</SU> <FTREF/> referred to in this action collectively as “Environmental Commenters,” asserting that EPA's approval of the ANR as part of the SIP was not an error and that EPA's use of its error correction authority to remove the ANR from Ohio's SIP was unlawful. These comments stated that the ANR was an “important regulatory tool in achieving and maintaining the NAAQS,” and that its removal from the SIP “ignored the role of citizen suits in CAA enforcement.” Further, these comments identified procedural concerns with EPA's error correction, and stated that EPA was required to adhere to the SIP revision process to remove the ANR from Ohio's SIP, which would include addressing the requirements of section 193 of the CAA to demonstrate that no backsliding would result from this change. Additionally, these comments addressed the use of the ANR in enforcement actions. <SU>2</SU> <FTREF/> These comments asserted that EPA had failed to consider the impact of eliminating the only available pathway for Ohio residents to enforce the ANR. Therefore, the commenters maintained, removing the ANR from the SIP prevents 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 March 2020 Proposed Rule, on the nuisance provision for Federal enforcement of citizen suits under section 304 of the CAA to address highly localized emissions. <FTNT> <SU>1</SU>  EPA received comments opposing the removal of the ANR from the Sierra Club, the Ohio Environmental Council, Ohio Citizen Action, Altman Newman Co. LPA, the National Resources Defense Council, and more than 1800 individual commenters who submitted their comments as part of a letter-writing campaign. <E T="03">See</E> Docket ID No. EPA-R05-OAR-2020-0055. All documents in the docket are listed on the <E T="03">www.regulations.gov</E> website. </FTNT> <FTNT> <SU>2</SU>   <E T="03">See</E> “Sierra Club, Ohio Environmental Council, Ohio Citizen Action, Altman Newman Co. LPA, and Natural Resources Defense Council Comments Regarding EPA Proposed Removal of the Air Pollution Nuisance Rule from the Ohio State Implementation Plan (SIP),” Docket ID No. EPA-R05-OAR-2020-0055. All documents in the docket are listed on the <E T="03">www.regulations.gov</E> website. </FTNT> Notwithstanding the Environmental Commenters' concerns as articulated in their comments on the March 2020 Proposed Rule, EPA finalized the removal of the ANR from the Ohio SIP in November 2020. The Environmental Commenters then raised many of these same concerns in the United States Court of Appeals for the Sixth Circuit in petitioning for review of EPA's ANR removal action, alongside other environmental groups and private citizens. <E T="03">See Sierra Club</E> v. <E T="03">EPA,</E> 60 F.4th 1008 (6th Cir. 2023). During that litigation in the Sixth Circuit, the State of Ohio submitted a letter to the Court  <SU>3</SU> <FTREF/> acknowledging that it had relied on the ANR as recently as July 2021, when it brought a lawsuit against an iron and steel manufacturing facility that cited exceedances of the NAAQS as evidence of nuisance under the ANR. See <E T="03">State of Ohio</E> v. <E T="03">Republic Steel,</E> Case No. 2021VC000949 (Sark County, Ohio July 2, 2021). <FTNT> <SU>3</SU>   <E T="03">See</E> “Notice of additional information in <E T="03">Sierra Club, et al.</E> v. <E T="03">United States Environmental Protection Agency,</E> No. 21-3057,” <E T="03">Sierra Club</E> v. <E T="03">EPA,</E> No. 21-3057 (6th Cir. Oct. 18, 2022). </FTNT> Ultimately, the Sixth Circuit granted EPA's request for a voluntary remand of EPA's removal of the ANR back to the Agency for further review. In so doing, the Sixth Circuit cited several cases in which parties could and did bring enforcement actions for violations of the ANR (prior to EPA removing the rule from the Ohio SIP). <E T="03">See Sierra Club,</E> 60 F.4th at 1014 (citing <E T="03">Fisher</E> v. <E T="03">Perma-Fix of Dayton, Inc.</E> No., 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)). 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). <E T="03">Id.</E> While the Court acknowledged EPA's statement in its proposal that it had found “no information” indicating the State had relied or intended to rely on the ANR for attainment or maintenance of the NAAQS, the Court noted that there was nothing in EPA's proposal or EPA's January 2020 email exchange with the Ohio EPA official that discussed whether the ANR had a role in NAAQS <E T="03">enforcement. Sierra Club,</E> 60 F.4th at 1015 (emphasis in original). After a careful reevaluation of the November 2020 Final Rule in accordance with the Sixth Circuit's decision, EPA proposed in February 2024 that EPA's November 2020 action removing the ANR from the Ohio SIP was deficient and in error. Consequently, in February 2024, EPA also proposed to reverse its removal and reinstate the ANR into the Ohio SIP. EPA received both adverse and supportive comments on this proposed action. The adverse comments are addressed in Section II. of this preamble. EPA received comments in support of the proposed rule from more than 600 individual commenters who submitted their comments as part of a letter-writing campaign. The supportive commenters also included Sierra Club, the Ohio Environmental Council, AltmanNewman Co. LPA, the FreshWater Accountability Project, the Case Western Reserve University School of Law Environmental Law Clinic, Communities United for Action, Mom's Clean ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 93k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━