U.S. EPA removes Ohio’s air pollution nuisance rule from Ohio’s SIP

UPDATE (January 22, 2021): On January 19, 2021, the Sierra Club, the Ohio Environmental Council, and two individuals filed a petition with the Sixth Circuit Court of Appeals requesting review of US EPA’s November 19, 2020, final rule removing Ohio’s air pollution nuisance rule from Ohio’s SIP, which became effective on December 21, 2020.  Bricker will continue to closely monitor this rulemaking and the Sixth Circuit petition as the case progresses. 

In accordance with the rule, Ohio EPA has indicated that as of January 19, 2021, Section A. of the Standard Terms and Conditions for Ohio EPA’s Division of Air Pollution Control Permits-to-Install and Title V Operating Permits will no longer refer to the nuisance rule as being federally enforceable.

On November 19, 2020, U.S. EPA published its decision to remove Ohio’s air pollution nuisance rule from Ohio’s SIP in the Federal Register. The removal came at the request of Ohio EPA because the nuisance rule does not have a reasonable connection to the attainment of the NAAQS in Ohio, and U.S. EPA erred in approving it as part of Ohio’s SIP. Like in other states where a nuisance rule has been removed from the SIP, U.S. EPA agreed that the rule has not been relied upon to demonstrate implementation, maintenance or enforcement of any NAAQS. Ohio’s nuisance rule is codified in Ohio Administrative Code Rule 3745-15-07, which provides as follows: “[t]he emission or escape into the open air from any source or sources whatsoever, of smoke, ashes, dust, dirt, grime, acids, fumes, gases, vapors, 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, is hereby found and declared to be a public nuisance. It shall be unlawful for any person to cause, permit or maintain any such public nuisance.”

This rule is still in effect and is not impacted by U.S. EPA’s removal of the air nuisance rule from Ohio’s SIP. The practical effect of U.S. EPA’s action, however, is that claims for violations of Ohio’s air nuisance rule will need to be filed in the state court system in Ohio, and not subject to citizen suits under the Clean Air Act in federal court.