[Federal Register Volume 89, Number 36 (Thursday, February 22, 2024)]
[Proposed Rules]
[Pages 13304-13308]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-03555]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2020-0055; FRL-11687-01-R5]


Air Plan Approval; Ohio; Withdrawal of Technical Amendment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: 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.

DATES: Comments must be received on or before March 25, 2024.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2020-0055 at https://www.regulations.gov, or via email to 
<a href="/cdn-cgi/l/email-protection#60011212014e1301120108200510014e070f16"><span class="__cf_email__" data-cfemail="fb9a89899ad5889a899a93bb9e8b9ad59c948d">[email protected]</span></a>. For comments submitted at Regulations.gov, follow 
the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any

[[Page 13305]]

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 (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit https://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: 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, <a href="/cdn-cgi/l/email-protection#cabaaba4a5b9e4a9a2b8a3b9bea5b98aafbaabe4ada5bc"><span class="__cf_email__" data-cfemail="deaebfb0b1adf0bdb6acb7adaab1ad9ebbaebff0b9b1a8">[email protected]</span></a>. 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.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

I. Background

A. Procedural History

    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 (Sierra Club v. EPA, No. 21-3057). In briefing this 
matter before the Court, EPA argued that Petitioners did not have 
standing to bring this challenge. See Brief for Respondents at 1, 
Sierra Club v. EPA, 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. Id. 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. See ``Declaration in Support of Request for Voluntary 
Remand'' at para. 9, Brief for Respondents, Sierra Club v. EPA, 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. Id. EPA committed to 
completing its reevaluation within 12 months. Id. at para. 10.

B. Public Comments on EPA's Proposal To Remove the ANR

    During the public comment period for the March 23, 2020, proposed 
rule removing the ANR, EPA received comments presenting several 
opposing arguments.\1\ Commenters questioned whether EPA's section 
110(k)(6) error-correction action was an appropriate mechanism to 
remove the ANR from the Ohio SIP. See 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. Id. 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. Id.
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    \1\ 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 https://www.regulations.gov/docket/EPA-R05-OAR-2020-0055.
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    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. See footnote 1, supra.

C. The Sixth Circuit Opinion

    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

[[Page 13306]]

ANR (prior to EPA removing the rule from Ohio's SIP). E.g., Fisher v. 
Perma-Fix of Dayton, Inc. Np. 3:04-C-V-418, 2006 WL 212076 (S.D. Ohio 
Jan. 27, 2006); Sampson v. SunCoke Energy, 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 (i.e., filing 
notices of intent to sue under the CAA). Slip op. at 5. For support, 
the Court cited public comments opposing the proposed rulemaking that 
argued 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.'' Slip op. at 7.
    In addition, during the litigation in the Sixth Circuit, the state 
of Ohio submitted a letter to the Court \2\ 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 for violating the ANR 
and lead NAAQS based on excess lead emissions. See State of Ohio v. 
Republic Steel, Case No. 2021VC00949 (Stark County, Ohio July 2, 2021). 
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 enforcement. Slip op. at 6.
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    \2\ See ``Notice of additional information in Sierra Club, et 
al. v. United States Environmental Protection Agency, No. 21-3057,'' 
Sierra Club, et al. v. EPA et al., No. 21-3057 (6th Cir. Oct. 18, 
2022).
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D. Legal Authority for Proposed Action

    Section 110(k)(6) of the CAA authorizes EPA to revise a state's SIP 
when it ``determines that [its] action approving, disapproving, or 
promulgating any plan or plan revision (or part thereof) . . . was in 
error.'' Once EPA has made the determination that it erred, it ``may in 
the same manner as the approval, disapproval, or promulgation revise 
such action as appropriate without requiring any further submission 
from the State.'' Ala. Envtl. Council v. EPA, 711 F.3d 1277, 1286 (11th 
Cir. 2013). Section 110(k)(6) of the CAA has been interpreted by courts 
as a ``broad provision [that] was enacted to provide the EPA with an 
avenue to correct its own erroneous actions and grant the EPA the 
discretion to decide when to act pursuant to the provision.'' Miss. 
Comm'n on Envtl. Quality v. EPA, 790 F.3d 138, 150 (D.C. Cir. 2015). 
EPA can take action under section 110(k)(6) to correct an error only if 
the error existed at the time the SIP was originally approved. See 
Texas v. EPA, 726 F.3d 180, 204 (D.C. Cir. 2013) (Kavanaugh, J., 
dissenting).
    Additionally, EPA has inherent authority to reconsider, repeal, or 
revise past decisions to the extent permitted by law so long as the 
Agency provides a reasoned explanation. See FCC v. Fox Television 
Stations, Inc., 556 U.S. 502 (2009) (an agency may revise its policy, 
but must demonstrate that the new policy is permissible under the 
statute and is supported by good reasons, taking into account the 
record of the previous rule). An agency's authority to reconsider past 
decisions derives from its statutory authority to make those decisions 
in the first instance. See Trujillo v. General Electric Co., 621 F.2d 
1084, 1086 (10th Cir. 1980) (``Administrative agencies have an inherent 
authority to reconsider their own decisions, since the power to decide 
in the first instance carries with it the power to reconsider.'') 
(citing Albertson v. FCC, 182 F.2d 397, 399 (D.C. Cir. 1950)). See 621 
F.2d at 1088 (``The authority to reconsider may result in some 
instances, as it did here, in a totally new and different 
determination.''). The CAA complements EPA's inherent authority to 
reconsider prior rulemakings by providing the Agency with broad 
authority to prescribe regulations as necessary. 42 U.S.C. 7601(a); see 
also Emission Guidelines and Compliance Times for Municipal Solid Waste 
Landfills, 81 FR 59276, 59277-59278 (August 29, 2016).
    Section 110(a)(1) of the CAA imposes an obligation upon states to 
submit SIPs that provide for the ``implementation, maintenance, and 
enforcement'' of a new or revised NAAQS within three years following 
the promulgation of that NAAQS. 42 U.S.C. 7410(a)(1). The importance of 
enforcement in the statutory scheme is evident in section 110(a)(2), as 
the list of required SIP elements under 110(a)(2)(A) includes 
enforceable emission limitations and other control measures, means, or 
techniques as may be necessary or appropriate to meet the applicable 
requirements of the CAA. Section 110(a)(2) ``sets only a minimum 
standard that the States may exceed in their discretion.'' Union Elec. 
Co. v. EPA, 427 U.S. 246, 260 (1976). The CAA provides that the 
Administrator must approve the proposed plan if it has been adopted 
after public notice and hearing and if it meets the specified criteria 
in section 110(a)(2). See also Train v. Nat. Res. Def. Council, Inc., 
421 U.S. 60, 79 (1975). In addition, section 116 of the CAA provides 
that States may adopt emission standards that are stricter than the 
NAAQS. See Union Electric at 263-64.
    Additionally, section 113 of the CAA establishes EPA's Federal 
authority to enforce SIP provisions, and section 304 of the CAA 
provides for citizen enforcement authority of the same. 42 U.S.C. 7413, 
7604. Thus, the CAA contemplates multiple mechanisms for enforcement of 
SIP provisions, and taken together with the requirement under section 
110(a)(1) that SIPs provide for the ``implementation, maintenance, and 
enforcement'' of the NAAQS, 42 U.S.C. 7410(a)(1), a state provision 
that provides for enforcement of the NAAQS is appropriate for inclusion 
in a SIP.

II. Reevaluation in Response to Remand

    EPA's November 2020 removal of the ANR from Ohio's SIP was based on 
a determination that the ANR's original inclusion in the Ohio SIP was 
erroneous because the ANR had no nexus to the implementation, 
maintenance, or enforcement of the NAAQS. See 85 FR 73636-73638. EPA 
has reviewed its November 2020 removal of the ANR from the Ohio SIP and 
reconsidered whether its determination that the ANR was approved in 
error was legally sufficient. Based on its reconsideration, EPA is 
proposing to conclude that its original determination was deficient for 
two reasons: (1) because EPA failed to adequately consider the ANR's 
use in enforcement of the NAAQS, and (2) because EPA failed to conduct 
an anti-backsliding analysis pursuant to section 193 of the CAA. As 
such, EPA is proposing to use both its error correction authority under 
CAA section 110(k)(6), and inherent reconsideration authority, to 
reverse its removal of the ANR and reinstate the provision back into 
the Ohio SIP.

A. Enforcement of the ANR

    In response to the remand, EPA has carefully considered the cases 
cited by the Sixth Circuit indicating that the ANR had been used as a 
tool to enforce the NAAQS, many of which were also submitted to EPA 
during the public comment period for the proposed action to remove the 
ANR. Upon further review, EPA is proposing to determine that its 
November 2020 action failed to adequately consider the role the ANR 
plays in the enforcement of the NAAQS in Ohio.
    During the public comment period for the proposed action removing 
the ANR,

[[Page 13307]]

EPA failed to adequately consider comments about citizen suits relying 
on the ANR as a tool to enforce the NAAQS. See footnote 1, supra. See 
also Fisher v. Perma-Fix of Dayton, Inc., No. 3:04-CV-418, 2006 WL 
212076 (S.D. Ohio Jan. 27, 2006) and City of Ashtabula v. Norfolk S. 
Corp., 633 F. Supp. 2d 519, 528-29 (N.D. Ohio 2009) (holding that the 
ANR is an enforceable emissions limitation within the meaning of the 
CAA); Sampson, et al. v. SunCoke Energy et al., 1:17-cv-00658-MRB (S.D. 
Ohio) (citizen suit alleging violations of the ANR at a coke production 
facility and which was pending at the time of EPA's removal of the 
ANR). EPA also received public comments opposing the proposed 
rulemaking that argued 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.'' Slip op. 
at 7. See also 85 FR 73636, 73637-73639 (November 19, 2020).
    Further, the state of Ohio acknowledged relying on the ANR as 
recently as July 2021, when it brought a lawsuit against an iron and 
steel manufacturing facility for violating the ANR based on lead 
emissions exceeding the NAAQS. See State of Ohio v. Republic Steel, 
Case No. 2021VC00949 (Stark County, Ohio July 2, 2021). See also 
footnote 2, supra. While this information came to light after EPA had 
taken final action to remove the ANR from Ohio's SIP, and thus EPA 
could not have considered it at the time of its original action to 
remove the ANR, it supports EPA's current analysis that the Ohio ANR is 
indeed used to enforce the NAAQS.
    The types of air pollution identified in the ANR--smoke, ashes, 
dust, dirt, grime, acids, fumes, gases, and vapors--could have a nexus 
to a number of NAAQS, including particulate matter, sulfur dioxide, and 
lead.\3\ The CAA requires that SIPs provide for the implementation, 
maintenance, and enforcement of the NAAQS. See 42 U.S.C. 7410(a)(1). In 
the original action approving the ANR into the SIP, the ANR had been 
adopted by the State after public notice and hearing, and EPA had 
determined that it met the specific criteria in section 110(a)(2). 
Under Union Electric, supra, EPA was required to approve the ANR into 
the SIP--even if such approval resulted in emission standards that were 
stricter than those required to attain or maintain the NAAQS.
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    \3\ Notably, in State of Ohio v. Republic Steel, Case No. 
2021VC00949 (Stark County, Ohio July 2, 2021), the State of Ohio 
sought to enforce the ANR based on lead emissions exceeding the 
NAAQS. See also footnote 2, supra.
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    The examples cited by the Sierra Club, other commenters, and the 
Sixth Circuit highlight the importance of the ANR as a regulatory tool 
for achieving, maintaining, and enforcing the NAAQS consistent with 
section 110(a)(1) of the CAA. EPA's removal of the ANR from the Ohio 
SIP failed to consider the evidence in the record of the ANR's role in 
citizen suit enforcement of the NAAQS under the CAA. EPA is proposing 
to conclude that EPA's prior determination that inclusion of the ANR in 
the Ohio SIP was ``erroneous'' was flawed, as the evidence in the 
record before the Agency at the time that decision was made indicated 
that the ANR has a clear nexus to the enforcement of the NAAQS under 
section 110(a)(1) of the CAA. As such, EPA is proposing to use its 
error correction authority under CAA section 110(k)(6) to reverse its 
November 2020 rule and reinstate the ANR into the Ohio SIP.

B. Section 193 ``Anti-Backsliding'' Analysis

    On remand, EPA has also evaluated whether it should have performed 
an ``anti-backsliding'' analysis under section 193 of the CAA, 42 
U.S.C. 7515, as part of the Agency's November 2020 action removing the 
ANR from the Ohio SIP. Upon further review, EPA is proposing to 
determine that its original action was deficient because it should have 
performed an anti-backsliding analysis in taking this final action.
    Section 193 provides that, for SIP control requirements in effect 
before November 15, 1990, any ``modification'' thereof must ``insure[ ] 
equivalent or greater emissions reductions'' of the air pollutant for 
which the area is in nonattainment. 42 U.S.C. 7515. As a general 
matter, this ``anti-backsliding'' analysis is required when modifying 
SIP control requirements, whether through section 110(k)(6) or 
otherwise, if the modification impacts pre-1990 control requirements in 
a nonattainment area.
    Because the ANR was a pre-1990 SIP control requirement that was in 
effect in Ohio's nonattainment areas, EPA is proposing to determine 
that it was required to conduct an anti-backsliding analysis pursuant 
to section 193 when it removed the ANR in November 2020. Because EPA 
failed to conduct the required analysis under section 193, the Agency's 
November 2020 removal of the ANR was deficient.
    Through this action, EPA is proposing to determine its November 
2020 removal of the ANR was in error and reinstate the ANR into the 
Ohio SIP. Section 193 does not apply to this proposed action because 
the anti-backsliding analysis is required only when there is 
modification of a ``control requirement in effect . . . before November 
15, 1990, in any area which is a nonattainment area for any air 
pollutant.'' See section 193 of the CAA, 42 U.S.C. 7515. EPA is not 
proposing to modify a control requirement currently in effect in Ohio's 
SIP. Rather, EPA is proposing to determine its prior removal of the ANR 
was in error, and to correct that error by reinstating the ANR into 
Ohio's SIP.

C. EPA's Use of Section 110(k)(6)

    On remand, EPA has also evaluated whether the section 110(k)(6) 
error-correction mechanism was an appropriate vehicle for removing the 
ANR from Ohio's SIP. As discussed throughout this proposal, EPA has 
reevaluated its removal of the ANR and 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. Notwithstanding the 
deficiencies in EPA's November 2020 action, as a general legal matter, 
section 110(k)(6) can be an appropriate mechanism to revise a prior 
action on a SIP revision that was in error. As the Sixth Circuit noted 
in its order remanding this matter back to EPA, ``[i]f EPA determines 
that its prior approval of a SIP was in error, the EPA can revise the 
plan using the Clean Air Act's error-correction provision, 42 U.S.C. 
7410(k)(6).'' Slip op. at 1. ``The claimed error can be used to revise 
a SIP only if the error existed at the time of the SIP's prior 
approval.'' Slip op. at 4, citing Ala. Env't Council v. EPA, 711 F.3d 
1277, 1287-88 (11th Cir. 2013); Texas v. EPA, 726 F.3d 180, 204 (D.C. 
Cir. 2013). While section 110(k)(6) can be an appropriate vehicle to 
revise a prior action on a SIP provision, EPA's November 2020 use of 
section 110(k)(6) was deficient on a number of bases.
    EPA's November 2020 removal of the ANR from the Ohio SIP was based 
on a determination that the ANR's inclusion in the Ohio SIP was 
erroneous because it had no nexus to the implementation, maintenance, 
or enforcement of the NAAQS, and that Ohio did not rely on the ANR to 
meet these statutorily prescribed requirements. See 85 FR 73636-73638. 
As discussed above, EPA failed to consider the ANR's role as a NAAQS 
enforcement tool under the CAA. Consequently, we are now proposing to 
determine that the ANR has a clear nexus to the enforcement of the 
NAAQS under section 110(a)(1) of the CAA, and

[[Page 13308]]

that EPA's prior determination that inclusion of the ANR in the Ohio 
SIP was ``erroneous'' was flawed. As discussed above, EPA failed to 
consider public comments demonstrating the ANR's use as a NAAQS 
enforcement tool. Further, EPA failed to conduct an ``anti-
backsliding'' analysis pursuant to section 193 of the CAA. As such, EPA 
is proposing that its November 2020 removal of the ANR using section 
110(k)(6) was improper.
    Because the ANR's inclusion in the Ohio SIP was not erroneous, 
there was no ``error'' to correct. In other words, EPA erred in using 
section 110(k)(6) to remove the ANR because the ANR was appropriate for 
inclusion in the Ohio SIP at the time the SIP was originally approved. 
See Texas v. EPA, 726 F,3d 180, 204 (D.C. Cir. 2013) (Kavanaugh, J. 
dissenting). EPA is now proposing to correct its erroneous November 
2020 action removing the ANR from the Ohio SIP, and to therefore 
reinstate the ANR into the Ohio SIP.

III. What action is EPA taking?

    EPA is proposing to determine that its prior action removing OAC 
3745-15-07 from the Ohio SIP was deficient. Consequently, EPA is 
proposing to reverse its removal and reinstate OAC 3745-15-07 into the 
Ohio SIP, recodifying this reinstatement by revising the appropriate 
paragraph under 40 CFR part 52, subpart KK, 52.1870 (Identification of 
Plan).

IV. Incorporation by Reference

    In this action, EPA is proposing to include final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by 
reference Ohio rule OAC 3745-15-07, as effective on May 17, 1982, 
discussed in section II of this preamble. EPA has made, and will 
continue to make, these documents generally available through 
www.regulations.gov and at the EPA Region 5 Office (please contact the 
person identified in the FOR FURTHER INFORMATION CONTACT section of 
this preamble for more information).

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 Orders 12866 (58 
FR 51735, October 4, 1993), and 14094 (88 FR 21879, April 11, 2023);
    <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).
    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
February 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' EPA further defines the term fair treatment to mean that 
``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    EPA did not perform an EJ analysis and did not consider EJ in this 
action. Consideration of EJ is not required as part of this action, and 
there is no information in the record inconsistent with the stated goal 
of E.O. 12898 of achieving environmental justice for people of color, 
low-income populations, and Indigenous peoples.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: February 14, 2024.
Debra Shore,
Regional Administrator, Region 5.
[FR Doc. 2024-03555 Filed 2-21-24; 8:45 am]
BILLING CODE 6560-50-P


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