Sixth Circuit Ruling on Ohio’s Air Nuisance Rule
On February 10, 2023, the Sixth Circuit issued an opinion in Sierra Club, et al. v. U.S. EPA, et al., (Case No. 21-3057). The case involved a petition for review filed by the Sierra Club, the Ohio Environmental Council, and two individual citizens (“Petitioners”) who challenged U.S. EPA’s final action removing Ohio’s air pollution nuisance rule from Ohio’s State Implementation Plan (“SIP”).
U.S. EPA’s Final Action and the Petition for Review:
The U.S. EPA published notice of its final action subject to the petition for review on November 19, 2020. In its final action, U.S. EPA determined that Ohio did not rely upon the air nuisance rule to demonstrate attainment or maintenance of any National Ambient Air Quality Standards (“NAAQS”), and utilized its error-correction authority set forth in statute to remove the air nuisance rule from Ohio’s SIP. The final action became effective on December 21, 2020. In effect, U.S. EPA’s removal of the air pollution nuisance rule from Ohio’s SIP allows Ohio EPA to discontinue its prior practice of including the nuisance provision as a standard term and condition within each air permit that it issues. This in practice allowed plaintiffs to file citizen suits against facilities in which they could allege that the facility is in violation of the nuisance provision of the permit, even in instances where the facility was operating in accordance with the other limitations set forth within its air pollution control permit, and even where Ohio EPA stated the facility did not operate as a nuisance.
On January 18, 2021, Petitioners filed a petition for review of U.S. EPA’s final action with the Sixth Circuit. On February 12, 2021, U.S. EPA moved to hold the case in abeyance, citing President Biden’s Executive Order on “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” signed by President Biden on his first day in office, which directed all federal agencies to immediately review and take action to address all federal regulations and actions promulgated during the previous four years that conflicted with the objectives set forth in the Executive Order. According to U.S. EPA, it required time to brief its incoming administration officials on its final action and decide whether any further action was necessary in light of the Executive Order. The case was held in abeyance until October 18, 2021, following notice to the Court from U.S. EPA that it had completed its review of its action and no longer sought to hold the matter in abeyance. On July 7, 2022, U.S. EPA filed its brief in support of its action, in which it took the unusual position of arguing that its action was reasonable and should be upheld, but simultaneously also requesting that the Sixth Circuit remand the matter back to U.S. EPA to grant the agency the opportunity to “reconsider the challenged action.”
Ohio’s Air Nuisance Rule:
The Clean Air Act requires each state to develop a SIP to provide for the “implementation, maintenance, and enforcement” of federally established air-quality standards. 42 U.S.C. §7410(a)(1). States must also “include enforceable emission limitations and other control measures” necessary to ensure attainment of those standards. §7410(a)(2)(A). Ohio Administrative Code 3745-15-07 is known as Ohio’s air nuisance rule. Ohio’s air nuisance rule does not require specific and quantifiable emissions limitations and is not targeted at the implementation, maintenance, or enforcement of air-quality standards. Rather, it states that any release of any substances or odors that endanger the health, safety or welfare of the public, or cause unreasonable injury or damage to property, shall be a public nuisance, and that it shall be unlawful for any person to cause, permit or maintain any such public nuisance.
Ohio and U.S. EPA’s Response:
The State of Ohio, an intervener in the case, filed a brief in support of U.S. EPA’s final action on July 5, 2022. The State noted that Ohio EPA should not have included the air nuisance rule in the original SIP that it submitted to U.S. EPA for approval following promulgation of the Clean Air Act, and that U.S. EPA should not have approved the inclusion of the air nuisance rule in Ohio’s SIP. Ohio argued that the air nuisance rule is not the type of enforceable emission limitation or a control measure that belongs in a SIP because instead of setting quantifiable limits on, or regulating the emission of, pollutants governed by the EPA’s air-quality standards, it simply defines “public nuisance” to include “emission or escape into the open air” of various substances, combinations and odors. O.A.C. 3745-15-07. Ohio also noted in its brief that it has never, in the nearly 50 years since Ohio’s first SIP was approved, relied on the air nuisance rule when explaining how it intends to attain or maintain the air-quality standards.
U.S. EPA has utilized its error-correction authority (as it did with this final action) to remove similar air nuisance rules from approved implementation plans in numerous other states, including Georgia, California, Michigan and Pennsylvania, for the very same reason as it did in Ohio—because those states did not rely on these nuisance rule provisions for the attainment and maintenance of air quality standards. However, in its brief in support of its action, U.S. EPA took the unusual position of arguing that its action was reasonable and should be upheld, but simultaneously also requesting that the Sixth Circuit remand the matter back to U.S. EPA to grant the agency the opportunity to “reconsider the challenged action.”
Crucially, one day before oral argument in the case, on October 18, 2022, the State filed a notice of additional information with the Court, stating that it recently became aware that on at least one occasion, the State had filed an enforcement lawsuit alleging violations of the air nuisance rule, and in support of its allegations cited exceedances of the federal ambient air quality standards. While the State argued that using the nuisance rule to achieve criteria pollutant reductions is not equivalent to relying on the rule for SIP purposes, the State’s notice became the focus of discussion at oral argument. And in response, U.S. EPA reiterated its request for voluntary remand rather than proceeding with a decision on the merits in order to allow U.S. EPA to consider what effect, if any, the new information has on the action at issue in the case.
Ruling and Next Steps
In its Opinion, the Sixth Circuit granted U.S. EPA’s request for remand, citing case law precedent in support of voluntary remand requests unless they are unwarranted or abusive, and so long as they are “in the absence of apparent or clearly articulated countervailing reasons.” However, the Court declined to grant Petitioners’ request to vacate U.S. EPA’s action during the period of U.S. EPA’s reconsideration, noting that it does not clearly have authority to do so absent the first ruling on the merits, and that it is unwarranted here as U.S. EPA may be able to justify its action on remand. Consequently, U.S. EPA’s final action removing the air pollution nuisance rule from Ohio’s SIP remains effective today, and until such time as U.S. EPA concludes its further review and takes some further action.
