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[Federal Register Volume 90, Number 12 (Tuesday, January 21, 2025)]
[Rules and Regulations]
[Pages 6811-6823]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-00968]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2020-0055; FRL-11687-02-R5]

Air Plan Approval; Ohio; Withdrawal of Technical Amendment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: 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.

DATES: This final rule is effective on February 20, 2025.

ADDRESSES: 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 https://www.regulations.gov website. Although listed in the index, 
some information is not publicly available, i.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 https://www.regulations.gov 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.

FOR FURTHER INFORMATION CONTACT: Christos Panos, Air and Radiation 
Division (AR-18J), Environmental Protection Agency, Region 5, 77 West 
Jackson Boulevard, Chicago, Illinois 60604, (312) 353-8328, 
[email protected].

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

I. Background

    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,\1\ 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.\2\ 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

[[Page 6812]]

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.
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    \1\ 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. See Docket ID 
No. EPA-R05-OAR-2020-0055. All documents in the docket are listed on 
the www.regulations.gov website.
    \2\ See ``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 www.regulations.gov website.
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    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. See Sierra Club v. EPA, 60 F.4th 1008 (6th 
Cir. 2023).
    During that litigation in the Sixth Circuit, the State of Ohio 
submitted a letter to the Court \3\ 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 State of Ohio v. 
Republic Steel, Case No. 2021VC000949 (Sark County, Ohio July 2, 2021).
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    \3\ See ``Notice of additional information in Sierra Club, et 
al. v. United States Environmental Protection Agency, No. 21-3057,'' 
Sierra Club v. EPA, No. 21-3057 (6th Cir. Oct. 18, 2022).
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    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). See Sierra 
Club, 60 F.4th at 1014 (citing Fisher v. Perma-Fix of Dayton, Inc. No., 
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)). 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). Id. 
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. Sierra Club, 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 Air Force (Ohio), and the Athens County Future Action 
Network. Several of these commenters had previously expressed 
disagreement with EPA's March 2020 Proposed Rule to remove the ANR from 
the SIP. Many of these supportive comments reinforced several comments 
on the March 2020 Proposed Rule, stating that the ANR's inclusion in 
the SIP is appropriate under the CAA as it provides for the 
implementation, maintenance, and enforcement of the NAAQS. The 
supportive commenters agreed with EPA's current position, and 
referenced the Sixth Circuit's acknowledgement, that the ANR has been 
used to limit emissions of criteria pollutants under the CAA, and that 
the CAA gives states wide discretion to design appropriate regulations 
to attain and maintain the NAAQS. The supportive commenters also 
reiterated that the ANR has been used in multiple CAA enforcement 
actions, and agreed with EPA that citizen suits under the CAA serve as 
a crucial implementation and enforcement mechanism. The supportive 
commenters also agreed with EPA's acknowledgement that, under CAA 
section 193, EPA was required to perform an anti-backsliding analysis 
before removing the ANR from the SIP in the November 2020 Final Rule, 
because the ANR is considered a control requirement, and EPA could not 
have properly used its error correction authority under CAA section 
110(k)(6) to remove the ANR unless the removal would ensure equivalent 
or greater emission reductions under CAA section 193.

II. Response to Comments

    All of the comments received on the February 2024 Proposed Rule are 
included in the docket for this action. Relevant supportive comments 
were summarized in Section I. of this preamble. EPA received adverse 
comments from a group of Ohio trade associations, the Ohio Attorney 
General, and the Ohio Environmental Protection Agency (Ohio EPA). The 
relevant comment summaries are summarized and addressed below.
    Comment: The commenter contends that EPA may not withdraw its 2020 
final rule and reinstate the ANR in the Ohio SIP through its error 
correction authority under CAA section 110(k)(6). The commenter states 
that the 2020 Final Rule was not an action ``approving, disapproving, 
or promulgating any plan or plan revision'' as required by CAA section 
110(k)(6). In addition, the commenter alleges that the 2020 Final Rule 
was not a ``plan revision''; it was a revision to EPA's final action 
approving the ANR's inclusion in the Ohio SIP in 1974. The commenter 
states that EPA is not proposing to correct an error it made when it 
originally approved Ohio's SIP, or any part of the SIP; it is proposing 
to reverse a prior correction made in 2020. The commenter claims that 
EPA's error correction authority would not apply to EPA's 2020 
correction, only to errors that existed in the SIP at the time the SIP 
was originally approved.
    Response: As discussed in EPA's February 2024 Proposed Rule, the 
language in CAA section 110(k)(6) provides EPA authority to issue an 
error correction action whenever EPA ``determines that [its] action 
approving, disapproving, or promulgating any plan or plan revision (or 
part thereof) . . . was in error.'' Once EPA has made a 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 (11th Cir. 2013). As recognized by courts, EPA 
has broad authority to issue error corrections under CAA section 
110(k)(6), which has been interpreted 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.'' Assoc. of Irritated Residents v. EPA, 79 F.3d 934, 
948 (9th Cir. 2015).

[[Page 6813]]

    As explained in our February 2024 Proposed Rule, EPA's decision to 
correct its November 2020 Final Rule is based on a determination that 
our original action to remove the ANR from Ohio's SIP was in error, 
because that prior 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.
    With respect to the commenter's assertion that EPA's November 2020 
Final Rule was not ``approving, disapproving, or promulgating any plan 
or plan revision,'' and that therefore EPA cannot correct the November 
2020 Final Rule under section 110(k)(6), we disagree. In the November 
2020 Final Rule, EPA clearly stated that ``[u]pon the effective date of 
this action, the nuisance rule will no longer be part of the Ohio 
SIP.'' \4\ In other words, by that action, EPA revised the Ohio SIP to 
no longer include the ANR. This clearly qualifies as EPA ``promulgating 
any . . . plan revision,'' and therefore falls within the authority of 
EPA to correct under CAA section 110(k)(6). EPA further disagrees with 
the commenter's contention that CAA section 110(k)(6) can be used only 
to correct errors that existed in the SIP at the time the SIP was 
originally approved. This limitation on the scope of CAA section 
110(k)(6) authority is not present in the text of the CAA and is not 
clearly inferable from it. The text authorizes EPA to make corrections 
to actions that EPA has taken in the past, and the commenter has not 
provided any statutory basis to support the claim that section 
110(k)(6) may only be used to correct original SIP approvals. The only 
support that the commenter cites is an out of context statement from a 
dissenting opinion in a D.C. Circuit decision that, even if 
controlling, would not undermine EPA's action here.\5\
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    \4\ 85 FR 73636 (November 19, 2020).
    \5\ The commenter cites to Texas v. EPA, 726 F.3d 180, 204 (D.C. 
Cir. 2013) (Kavanaugh, J., dissenting) for the proposition that EPA 
can use its error correction authority under section 110(k)(6) only 
if the error existed at the time the SIP was originally approved. 
The action in that case corrected a prior approval, so in context, 
this statement was intended to articulate a perceived temporal 
limitation on EPA's authority to correct errors, (i.e., that the 
error had to exist at the time of the prior action), not the types 
of actions that can be corrected--which are clearly delineated in 
the statutory text.
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    Comment: The commenter contends that EPA may not reverse its 2020 
final rule and reinstate the ANR in the Ohio SIP through its inherent 
authority. The commenter alleges that this is because inherent 
reconsideration does not apply where Congress has spoken, and the CAA 
carefully prescribes how SIPs may be amended. Congress authorized 
reconsideration of SIP-related final actions in sections 307(d)(7) and 
110(k)(6) of the CAA and the agency cannot rely on its inherent 
authority to circumvent those express requirements. The commenter 
further states that even if EPA had reconsideration authority, the 
exercise of that authority is barred as untimely because an agency's 
inherent authority to reconsider a prior decision is proper only when 
``such reconsideration occurs within a reasonable time after the first 
decision'' [citations omitted]. Here, EPA's reconsideration comes 
nearly four years after its original decision, which the commenter 
claims is not within a reasonable amount of time.
    Response: As explained in our February 2024 Proposed 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.''). In other words, EPA's 
authority to reconsider its November 2020 Final Rule derives from our 
statutory authority under CAA section 110(k)(6) that we relied on to 
take that action in the first instance. Thus, with respect to the 
commenter's assertion that the agency cannot ``circumvent'' the express 
requirements of sections 307(d)(7) or 110(k)(6) and rely instead on its 
inherent reconsideration authority, the commenter misunderstands the 
basis for this action as articulated in our proposed rule. In this 
final action, EPA is relying both on its authority under CAA section 
110(k)(6) as well as its inherent reconsideration authority to 
determine that our November 2020 Final Rule was in error. EPA notes 
that section 307(d)(7) is not applicable to the current action.
    Further, 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).
    With respect to the commenter's assertion that EPA's 
reconsideration is barred because it did not occur within a 
``reasonable'' amount of time, EPA notes that the commenter cites to a 
Sixth Circuit case stating that ``[w]hat is a short and reasonable time 
period will vary with each case, but absent unusual circumstances, the 
time period would be measured in weeks, not years.'' Belville Min. Co. 
v. United States, 999 F.2d 989, 1000 (6th Cir. 1993). However, EPA 
further notes that its reconsideration process did not actually begin 
until the Sixth Circuit issued its February 10, 2023, decision granting 
EPA's request for voluntary remand of the November 2020 action. To 
summarize the timeline, EPA's November 2020 Final Rule removing the ANR 
was challenged almost immediately, both through a Petition for 
Reconsideration submitted on January 18, 2021, and then a Petition for 
Review in the Sixth Circuit filed on January 19, 2021. The Sixth 
Circuit litigation continued until February 10, 2023, when the Court 
granted EPA's request for voluntary remand. The Agency represented to 
the Court, and the Court acknowledged in its opinion, that the Agency 
would ``complete its reevaluation of the ANR within twelve months of 
remand,'' Sierra Club, 60 F.4th at 1020. EPA accordingly reconsidered 
its November 2020 Final Rule for approximately twelve months, 
culminating in the February 2024 Proposed Rule at issue here. EPA's 
action here is therefore timely given the litigation and the Court's 
express acknowledgement of a twelve-month period to reconsider the 
ANR's removal. The commenter is incorrect to assert that the 
reconsideration process occurred over four years, where the majority of 
that time was spent litigating the original November 2020 Final Rule.
    Comment: The commenter contends reinstating the ANR in the Ohio SIP 
would be arbitrary and capricious, and thus unlawful pursuant to the 
Administrative Procedure Act and section 307(d) of the CAA (if deemed 
applicable). The commenter states that in at least 16 separate actions 
in 14 different states, EPA has removed air and odor nuisance rules 
from SIPs or declined to include them in SIPs when requested by states, 
citing an insufficient connection to attainment and maintenance of the 
NAAQS. Further, the commenter notes that EPA has removed several 
nuisance rules from SIPs, in some cases using the same provision, CAA 
section 110(k)(6), that

[[Page 6814]]

was used in the removal of the nuisance rule from the Ohio SIP. The ANR 
prohibits emissions ``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.'' The commenter alleges that the generic categories of 
substances regulated by the ANR are unrelated to the NAAQS regulated 
pollutants, and the amounts prohibited bear no relation to compliance 
with the NAAQS standards. The commenter claims that reinstating the ANR 
into Ohio's SIP would contradict EPA's decades-long practice and policy 
toward other states, and that by proposing to reinstate the nuisance 
rule into the Ohio SIP, EPA is treating Ohio inconsistently with other 
states that no longer have a nuisance rule in the SIP. Further, the 
commenter notes that this can have a direct effect on facilities 
deciding in which location to expand or build, and claims that the ANR 
is not required to be part of the SIP as demonstrated by EPA's removal 
of nuisance provisions in other SIPs.
    Response: EPA acknowledges that it has declined to approve certain 
nuisance rules into state SIPs, approved certain state requests to 
remove nuisance provisions from the respective SIPs, and removed 
certain nuisance rules from SIPs using our error correction authority 
under CAA section 110(k)(6). However, EPA maintains that each of the 
actions the commenter cites requires a distinct analysis based on the 
nature of the nuisance rule at issue, as well as the facts surrounding 
the particular rule in the particular state. As the Supreme Court has 
plainly stated, ``[e]ach State is given wide discretion in formulating 
its [SIP], and the Act provides that the [EPA] `shall approve' the 
proposed plan if it has been adopted after public notice and hearing 
and if it meets eight specified criteria'' in CAA section 110(a)(2). 
Union Elec. Co. v. EPA, 427 U.S. 246, 250 (1976). The criteria in 
section 110(a)(2) are broad, such as requiring the plan to ``include 
enforceable emission limitations and other control measures, means, or 
techniques as may be necessary or appropriate to meet the applicable 
requirements of this chapter,'' and these criteria implement the 
overarching requirement in CAA section 110(a)(1) that states must have 
a SIP that ``provides for implementation, maintenance, and enforcement 
of the NAAQS.''
    Importantly, Congress ``left to the States considerable latitude in 
determining specifically how the [NAAQS] would be met. This discretion 
includes the continuing authority to revise choices about the mix of 
emission limitations.'' Train v. Nat. Res. Def. Council, Inc., 421 U.S. 
60, 87 (1975). This discretion also encompasses the flexibility that 
``[s]tates may submit [SIPs] more stringent than federal law requires'' 
and the Supreme Court has instructed that EPA ``must approve such plans 
if they meet the minimum requirements of Sec.  110(a)(2).'' Union 
Elec., 427 U.S. at 265.
    EPA therefore is responsible for evaluating state SIPs and 
approving those SIPs that meet the requirements of the CAA. With 
respect to evaluating a state's SIP submission requesting to remove a 
nuisance provision from the state's SIP, or EPA's use of its error 
correction authority to remove a nuisance provision from a SIP, this 
would include an evaluation of the specific nuisance provision's 
connection to the ``implementation, maintenance, and enforcement'' of 
the NAAQS. In some cases, such an evaluation could lead to the 
conclusion that the nuisance provision does not have a connection to 
the NAAQS, and a conclusion that therefore the state's request to 
remove the relevant provision from the SIP, or that EPA's prior 
approval of the provision into the SIP was in error, could be 
appropriate. In other cases, however, in which the record indicates 
that there is a connection between the nuisance provision and the 
``implementation, maintenance, and enforcement'' of the NAAQS, see CAA 
section 110(a)(1), an EPA action to unilaterally remove that provision 
from the SIP would be contrary to respecting the state's ``considerable 
latitude in determining specifically how the [NAAQS] would be met.'' 
See Train, 421 U.S. at 87.
    In this case, the type of air pollution identified in the ANR--
smoke, ashes, fumes, gases, and vapors--could have a nexus to several 
NAAQS, including particulate matter (PM), sulfur dioxide 
(SO2), lead, and ozone. And as will be discussed at length 
in response to the next comment, the Ohio ANR has a demonstrated 
connection to the enforcement of the NAAQS. As acknowledged, the 
commenters have identified instances in which EPA has removed certain 
nuisance provisions from state SIPs. The commenters have not, however, 
identified any analogous situations in which EPA unilaterally removed a 
nuisance provision from a SIP notwithstanding a demonstrated connection 
between the nuisance provision and the attainment, maintenance, and 
enforcement of the NAAQS. As discussed in the February 2024 Proposed 
Rule, EPA's November 2020 Final Rule failed to consider information in 
the record demonstrating that the Ohio ANR had been used to enforce the 
NAAQS. Thus, the specific nature of Ohio's nuisance rule and the facts 
surrounding its use within the state indicate that EPA did not have an 
adequate basis in its November 2020 Final Rule to interfere with the 
choice that Ohio made to include the ANR when originally submitted for 
incorporation into its SIP in 1974. With respect to Ohio's position on 
this rulemaking, EPA notes that there is nothing to stop Ohio from 
undertaking the SIP revision process and exercising its ``continuing 
authority to revise choices about the mix of emission limitations,'' 
see Train, 421 U.S. at 87, included in its SIP, should Ohio determine 
that the ANR is no longer appropriate for inclusion in its SIP and such 
SIP revision removing the ANR meets applicable CAA requirements, 
including CAA section 193.
    With respect to the commenter's contention that reinstating the ANR 
into Ohio's SIP would contradict EPA's decades-long practice and policy 
toward other states, and that EPA is treating Ohio inconsistently with 
other states that no longer have a nuisance rule in the SIP, EPA 
disagrees with this characterization of this action. As noted, any EPA 
action to include or remove a nuisance provision in a state SIP should 
be based on a fact-specific inquiry with respect to whether that 
specific provision helps provide for the ``implementation, maintenance, 
and enforcement'' of the NAAQS in that particular state. Commenters 
have not identified a factually analogous situation in which EPA has 
removed a nuisance provision from a SIP that has a demonstrated 
connection to the enforcement of the NAAQS. With respect to the 
commenter's contention that the inclusion of the ANR in the Ohio SIP 
impacts where facilities choose to build or expand, this is outside the 
scope of EPA's evaluation of whether EPA's action to remove the ANR 
from the SIP was in error. Again, we note that the State of Ohio has 
the discretion to submit a SIP revision to remove the ANR from its SIP 
at any time. In this action, EPA is not suggesting that the ANR must 
remain in Ohio's SIP in perpetuity; EPA is merely determining that its 
November 2020 Final Rule to unilaterally remove it was an error due to 
procedural and substantive deficiencies.
    Comment: The commenter contends the ANR is not an enforceable 
emission limitation or other control measure,

[[Page 6815]]

means, or technique. According to the commenter, nor does the ANR 
provide for the enforcement of such measures, so it is not a required 
element of Ohio's SIP. The commenter acknowledges that a state may, for 
its own purposes, however, have other regulations that have the effect 
of improving air quality but do not have NAAQS compliance implications. 
But the commenter contends that neither the Ohio EPA nor citizens use 
the ANR to enforce the NAAQS. In the proposed rule, EPA references 
three citizen suits and one Ohio EPA action as demonstrating where the 
ANR was used as a tool to enforce the NAAQS. The commenter claims that 
the three citizen suit actions cited by EPA did not use the ANR to 
enforce the NAAQS, they used the ANR solely to allege public nuisance 
impacts to property owners from nearby industrial operations. Further, 
the commenter states that nowhere in any of the Claims for Relief in 
the complaints associated with these citizen suits is there a reference 
to the NAAQS, any reference to ambient concentrations of criteria 
pollutants, or any reference to use of the ANR to reduce ambient 
concentrations of criteria pollutants to below a NAAQS standard. The 
commenter alleges that the NAAQS are only referenced in passing in the 
preliminary facts of the complaints in providing background on the CAA. 
With respect to Ohio EPA's action related to Republic Steel, State of 
Ohio v. Republic Steel, Case No. 2021VC00949 (Stark County, Ohio), the 
commenter claims that there is no evidence that Ohio used the ANR 
against Republic Steel as a means to attain or maintain the lead NAAQS 
in Stark County, Ohio. The commenter acknowledges that the action cited 
the ANR and the lead NAAQS, but claims that action did not use the ANR 
to enforce the NAAQS. Rather, the commenter states that it used 
exceedances of the NAAQS as evidence of noncompliance with the ANR. A 
NAAQS exceedance tied to a specific facility is relevant evidence under 
Ohio Evid. R. 401 tending to prove the existence of a nuisance under 
Ohio Adm. Code 3745-15-07. However, according to the commenter, a 
nuisance action is not a means of ``enforcing'' the NAAQS or ensuring 
attainment and maintenance of the NAAQS. In the Republic Steel case, 
the State alleged multiple additional facts beyond a NAAQS exceedance. 
However, the commenter states that a NAAQS exceedance does not 
automatically create a nuisance violation, and a nuisance violation is 
not dependent on having a NAAQS exceedance. According to the commenter, 
Ohio considered the plant's impact on an air quality monitor that 
exceeded the NAAQS to be evidence of a threat to public health and 
therefore a nuisance, not that the NAAQS exceedance would be 
sufficiently addressed by a nuisance claim.
    The commenter states that while the ANR may improve air quality, it 
does not ``enforce'' the NAAQS. The commenter acknowledges that it is 
possible that, while addressing a nuisance violation, a facility may 
reduce emissions of a criteria pollutant. According to the commenter, 
that coincidence of result is not the same as using the air nuisance 
rule for the purpose of ``enforcing'' or maintaining and achieving the 
NAAQS. The commenter states that EPA appears to conflate any 
improvement in air quality with ``enforce[ment of] the NAAQS.'' 
According to the commenter, the result of this is that EPA looks at the 
improvement the ANR may make to air quality as ``enforcing'' the NAAQS. 
The commenter claims that the CAA and EPA's own regulations do not make 
such a loose connection between air improvement and the NAAQS, and that 
the use of a NAAQS violation is a far cry from EPA's claim that the 
nuisance rule is ``used to enforce the NAAQS.''
    Response: As a threshold matter, EPA reiterates the nature of the 
current action. Ohio included the ANR for approval into its SIP in 
1974, and has not gone through the requisite SIP revision process to 
request that EPA remove the ANR from the State's SIP. As previously 
stated, EPA is not responsible for determining the appropriate ``mix of 
emission limitations,'' Train, 421 U.S. at 87, in the Ohio SIP to 
provide for attainment, maintenance, and enforcement of the NAAQS. 
Rather, EPA is tasked with evaluating whether Ohio's choices meet the 
CAA requirements. In this action, EPA is determining that our November 
2020 Final Rule was deficient for multiple reasons. As relevant to this 
comment, one of those reasons is that EPA failed to adequately consider 
comments on the March 2020 Proposed Rule indicating the reliance on the 
ANR to enforce the NAAQS. Had we considered those comments, EPA would 
not have stated in the November 2020 Final Rule that ``the Ohio 
nuisance rule is not associated with the implementation, maintenance, 
or enforcement of the NAAQS.'' \6\ For the reasons explained in our 
February 2024 Proposed Rule and this final rule and response to 
comments, EPA now acknowledges that the Ohio ANR does have a 
demonstrated connection to the implementation, maintenance, and 
enforcement of the NAAQS. Accordingly, our previous action to 
unilaterally remove it from Ohio's SIP was in error.
---------------------------------------------------------------------------

    \6\ 85 FR 73636 at 73638 (November 19, 2020).
---------------------------------------------------------------------------

    As a number of courts have recognized, Congress intended citizen 
suits under the CAA to be an important enforcement mechanism within the 
broader protective scheme of the CAA. ``The legislative history of the 
Clean Air Act Amendments reveals that the citizen suits provision 
reflected a deliberate choice by Congress to widen citizen access to 
the courts, as a supplemental and effective assurance that the Act 
would be implemented and enforced.'' NRDC v. Train, 510 F.2d 692, 700 
(D.C. Cir. 1974). As noted by the Sixth Circuit, the petitioners in the 
Sierra Club case, and in comments on the March 2020 and February 2024 
Proposed Rules, the ANR has been relied on in multiple CAA enforcement 
actions, including citizen suit enforcement cases.
    Environmental Commenters' comments on the March 2020 Proposed Rule 
identified specific CAA citizen suits that relied on the ANR as a tool 
to enforce the NAAQS. As one example, Environmental Commenters pointed 
to a case in which an individual resident invoked the Ohio ANR to seek 
relief from numerous airborne pollutants emitted from a nearby waste 
treatment facility; the district court held, over the defendant's 
argument to the contrary, that the nuisance provision was federally 
enforceable. See Fisher v. Perma-Fix of Dayton, Inc., No. 3:04-CV-418, 
2006 WL 212076, at *5 (S.D. Ohio Jan. 27, 2006). That suit prompted 
intervention by EPA, which obtained a consent decree citing to the 
violation of the Ohio ANR as part of the Ohio SIP.\7\ EPA notes that 
the terms of that consent decree included requirements for the facility 
to, among other things, install controls to limit emissions of Volatile 
Organic Compounds (VOCs), which are precursors to the formation of both 
ozone and PM. Ozone and PM are both criteria pollutants that are 
regulated by the NAAQS, and EPA further notes that Ohio currently has 
multiple nonattainment and maintenance areas for the ozone and PM 
NAAQS.
---------------------------------------------------------------------------

    \7\ See Fisher, ``Consent Decree'' (September 14, 2017), at 1.
---------------------------------------------------------------------------

    Local governments have also relied on the ANR to halt harmful air 
pollution and enforce the CAA. See City of Ashtabula v. Norfolk S. 
Corp., 633 F. Supp. 2d 519, 528-29 (N.D. Ohio 2009). In that case, the 
Ohio Northern District

[[Page 6816]]

Court determined that the ANR is an emission limitation as defined in 
CAA section 302(k).\8\ The defendant, owner and operator of a Coal Dock 
facility, moved to dismiss the claim brought under the citizen suit 
provision of the CAA (section 304), arguing that the ANR was precluded 
from citizen suit enforcement because it does not establish an emission 
limitation or standard under CAA section 302(k) given that it does not 
provide any identifiable limitation on the ``quantity, rate or 
concentration'' of a pollutant.\9\ The court disagreed and denied the 
motion to dismiss, stating that:
---------------------------------------------------------------------------

    \8\ Ashtabula, 633 F. Supp. 2d at 528.
    \9\ Id. The CAA citizen suit provision allows a person to 
commence a civil action on his own behalf ``against any person . . . 
who is alleged to have violated . . . an emission standard or 
limitation under this chapter.'' CAA section 304(a).

[Defendant's argument] must be rejected based upon an examination of 
the plain language of CAA Sec.  [302(k)] and OAC Rule 3745-15-07. 
OAC Rule 3745-15-07 finds the emission of pollutants ``in such 
amounts as to endanger the health, safety or welfare of the public, 
or cause unreasonable injury or damage to property'' to be a public 
nuisance and therefore unlawful. Id. (emphasis added by the court). 
While a numerical value is not explicitly stated, pollutants are 
limited to a quantity that doesn't endanger the public or cause 
unreasonable injury or damage to property. Because OAC Rule 3745-15-
07 ``limits the quantity . . . of air pollutants[,]'' it qualifies 
as an emission standard or limitation under Sec.  [302(k)] of the 
CAA. Plaintiff can therefore bring Count Four under a CAA citizen 
suit.\10\
---------------------------------------------------------------------------

    \10\ Id. At 528-29.

    In their comments, Environmental Commenters also pointed to a case 
that was pending in the Southern District of Ohio at the time EPA 
finalized our November 2020 Final Rule to remove the ANR from Ohio's 
SIP. In that case, Sampson v. SunCoke Energy, 1:17-cv-00658-MRB (S.D. 
Ohio, filed in 2017), the plaintiffs alleged that numerous noxious and 
hazardous substances had previously been and continued to be released 
from the Haverhill Coke Company plant into the environment--that list 
included PM, PM10, PM2.5, nitrogen oxides 
(NOX), VOCs, SO2, and carbon monoxide, among many 
others.\11\ EPA has established NAAQS for PM10, 
PM2.5, SO2, and carbon monoxide; and 
NOX and VOCs are precursors of both PM and ozone, which is 
another criteria pollutant. Thus, this case had a clear connection to 
the enforcement of the NAAQS. A motion to dismiss filed by defendants 
in 2018 alleged that many of the citizen suit claims overlapped with an 
ongoing Federal enforcement action, and the case was ultimately settled 
in 2021.\12\ This case thus provides another example of how citizen 
suits can use the ANR as a tool to help limit emissions of NAAQS 
criteria pollutants and their precursors, contrary to the commenter's 
suggestions that citizen enforcement actions relying on the ANR are not 
used to enforce the NAAQS.
---------------------------------------------------------------------------

    \11\ See Sampson, ``Complaint and Demand for a Jury Trial'' 
(September 29, 2017), at ] 1.
    \12\ See Sampson, ``Defendants' Memorandum in Support of Motion 
to Dismiss Counts Four (in part), Five, Seven, Ten, Fifteen, 
Sixteen, Eighteen, Nineteen, Twenty-Two, Twenty-Three, Twenty-Four 
(in part), Thirty and Thirty-Two of Plaintiffs' Complaint'' (April 
6, 2018), at 1; see also Sampson, ``Order'' (September 30, 2021).
---------------------------------------------------------------------------

    The commenters acknowledge that the ANR may improve air quality, 
but claim that such improvements do not equate to enforcing, achieving, 
or maintaining the NAAQS. They allege that EPA appears to conflate any 
improvement in air quality with enforcement of the NAAQS. EPA disagrees 
with the commenters' narrow reading of the CAA. As stated at the outset 
of this response, it is not EPA's responsibility to determine what mix 
of emission limitations the State should impose in its SIP to improve 
air quality and ultimately attain and maintain the NAAQS. See Train, 
421 U.S. at 87. Furthermore, EPA reiterates that the Northern District 
of Ohio affirmatively determined that the ANR is an emissions 
limitation as defined by CAA section 302(k).\13\ Imposing emission 
limitations on sources of pollution is a primary method that states 
utilize in constructing SIPs that demonstrate how they will attain and 
maintain the NAAQS, and, contrary to the commenter's suggestion, a 
particular emissions limitation need not demonstrate how it would 
directly lower the concentration of a specific criteria pollutant as a 
prerequisite for approval into the SIP. In this action, EPA is merely 
determining that our prior determination that the ANR was ``not 
associated with the implementation, maintenance, or enforcement of the 
NAAQS'' was incorrect. Our unilateral removal of the ANR from Ohio's 
SIP was contrary to giving the State ``considerable latitude in 
determining specifically how the [NAAQS] would be met'' \14\ where the 
Ohio ANR has a clear connection to the implementation, maintenance, and 
enforcement of the NAAQS. Even if the ANR were not considered to be an 
emissions limitation under the definition of that term in CAA section 
302(k), it would still squarely fall into the category of ``other 
control measures, means, or techniques . . . as may be necessary or 
appropriate to meet the applicable requirements of this chapter.'' CAA 
section 110(a)(2)(A). Unlike ``emissions limitations,'' which is a term 
with a specific definition under CAA section 302(k), the CAA does not 
specifically define ``control measures, means, or techniques.'' EPA 
notes that these are inherently capacious terms, and in the absence of 
a specific statutory definition, there is nothing about these terms 
that would preclude the ANR from being characterized as falling within 
their broad meanings. EPA therefore interprets these terms broadly in 
accordance with their plain meanings, i.e., that they refer to any 
``measures, means, or techniques'' that impose some form of ``control'' 
with respect to any of the NAAQS pollutants. The plain meaning of 
measure, in this context, could include any requirement that imposes 
some sort of control that may be necessary or appropriate to meet the 
applicable requirements of the CAA. Similarly, a means or technique in 
this context could include any sort of method or procedure for imposing 
controls as may be necessary or appropriate to meet CAA requirements. 
As illustrated by the specific examples in this response, the ANR has 
been invoked on multiple occasions with the goal and ultimate outcome 
of limiting emissions of criteria pollutants and their precursors. 
Thus, the ANR has been used as a measure, means, or technique, to 
control relevant emissions as may be necessary or appropriate to meet 
CAA requirements.
---------------------------------------------------------------------------

    \13\ Ashtabula, 633 F. Supp. 2d at 528.
    \14\ Train, 421 U.S. at 87.
---------------------------------------------------------------------------

    With respect to the commenter's specific assertions regarding the 
Republic Steel case,\15\ EPA disagrees with commenters' 
characterization of that case as being irrelevant to an evaluation of 
whether the ANR is used to enforce the NAAQS. The commenters 
acknowledge that the Republic Steel facility's NAAQS exceedances can be 
evidence of a nuisance claim, but allege that this is distinguishable 
from using the ANR to enforce the NAAQS. However, the complaint filed 
by the State of Ohio (``Complaint''), as well as the consent order and 
final judgment (``Consent Order''), provide important context and 
details with respect to the relationship of this case to the State's 
enforcement of the lead NAAQS.
---------------------------------------------------------------------------

    \15\ State of Ohio v. Republic Steel, Case No. 2021CV00949 
(Stark County, Ohio).
---------------------------------------------------------------------------

    First, the Complaint states the ``Republic Steel is the only known 
source of lead in the vicinity of the Georgetown Rd. lead monitoring 
site''

[[Page 6817]]

(emphasis added).\16\ Second, the Complaint states that ambient air 
monitoring results from the Georgetown Rd. monitoring site measured 
0.25 micrograms per cubic meter ([micro]g/m\3\) from March 2018 through 
May 2018, and 0.167 [micro]g/m\3\ from January 2019 through March 2019, 
while noting that the lead NAAQS is 0.15 [micro]g/m\3\.\17\ Third, the 
Complaint details how the Ohio EPA Director issued ``Final Findings and 
Orders'' to the defendant (Republic Steel), ordering the defendant ``to 
alleviate the excess lead emissions at the Facility,'' to include 
ceasing operation during times of high lead emissions or until 
corrective actions were taken.\18\ Notwithstanding those Orders, the 
defendant then emitted levels of lead in the amounts of 1.69, 2.6, and 
2.26 [micro]g/m\3\ on May 7, 9, and 13 of 2021, respectively.\19\
---------------------------------------------------------------------------

    \16\ Republic Steel, ``Complaint for Injunctive Relief and Civil 
Penalties'' (July 2, 2021), at ] 16.
    \17\ Id. at ] 17, 19.
    \18\ Id. at ] 18.
    \19\ Id. at ] 19.
---------------------------------------------------------------------------

    In light of these facts, the State of Ohio brought the nuisance 
claim based on the Ohio ANR as the sole count in the original 
Complaint.\20\ Under this count, the Complaint states: ``[o]n numerous 
occasions since at least May 2018, Defendant has caused or allowed lead 
emissions to emit from the Facility that led to exceedances of the lead 
NAAQS three month average and thus endangered the health, safety or 
welfare of the public and/or caused unreasonable injury or damage to 
property'' (emphasis added).\21\ In other words, the Complaint did not 
merely point to NAAQS exceedances as evidence of a nuisance; instead, 
the complaint alleged that the lead emissions from the facility--the 
sole known source of lead emissions in the vicinity of the relevant air 
monitor--caused these NAAQS exceedances. And the State of Ohio used 
this action, relying on the ANR, to obtain permanent injunctive relief 
(as entered in the Consent Order) that requires the Republic Steel 
facility to ``provide Ohio EPA and CAPC [Canton City Public Health Air 
Pollution Control Division] staff access to the air monitoring platform 
associated with the Fenceline Monitor,'' explaining that ``[t]he 
purpose of the source-oriented monitor pursuant to 40 CFR 58.10(a)(4) 
is to determine compliance with the NAAQS for lead.'' \22\ Further, the 
Consent Order requires that the facility either comply with the lead 
NAAQS (as demonstrated by the required monitoring), or ``immediately 
cease activities that are creating or could possibly be contributing to 
the NAAQS exceedance.'' \23\
---------------------------------------------------------------------------

    \20\ EPA acknowledges that the State amended its original 
complaint to supplement it with additional counts. However, the 
original count relying on the ANR remained intact in the amended 
complaint. See Republic Steel, ``Amended and Supplemental Complaint 
for Injunctive Relief and Civil Penalties'' (Mar. 14, 2023), at ] 
88.
    \21\ Complaint at ] 35.
    \22\ Republic Steel, ``Final Consent Order and Final Judgment 
Entry'' (December 12, 2023), at ] 16.
    \23\ Id. at ] 17.
---------------------------------------------------------------------------

    In short, the State of Ohio relied on the ANR to address excess 
lead emissions from the Republic Steel facility that were causing 
consistent NAAQS exceedances despite the Ohio EPA's attempts to address 
such excess emissions through another avenue (Director Final Findings 
and Orders). Ultimately, the State of Ohio secured injunctive relief to 
ensure that the facility either complies with the lead NAAQS, or ceases 
operations that could even possibly be contributing to the NAAQS 
exceedance (i.e., anything contributing to excess lead emissions). This 
confirms that the State of Ohio used the ANR to ensure the Republic 
Steel Facility complies with the lead NAAQS--in other words, to enforce 
the lead NAAQS.
    Comment: The commenter contends the ANR does not meet the CAA's 
requirements for inclusion in a SIP. The commenter states that when the 
ANR was incorrectly included into the SIP that was approved in 1974, 
then-section 110(a)(2)(A) of the CAA (reworded and renumbered section 
110(a)(2) in the 1990 CAA amendments) called for approval of a SIP if 
it ``includes emission limitations, schedules, and timetables for 
compliance with such limitations, and such other measures as may be 
necessary to insure attainment and maintenance of [the NAAQS].'' 
According to the commenter, the ANR fails that test. The commenter 
claims that Ohio has never relied on the ANR as a strategy for 
attaining or maintaining the NAAQS. Further, the commenter states that 
Ohio has never given notice and opportunity to comment on, or proposed 
or supported, the proposition that the ANR is necessary or appropriate 
to attain and maintain the NAAQS. The commenter contends that Ohio's 
federally-approved NAAQS demonstrations, which rely exclusively upon 
enforceable numerical emission limitations and other control 
requirements applicable to existing stationary sources, do not rely on 
the ANR. The commenter notes that the ANR makes no reference to, and is 
not concerned with, criteria pollutants or NAAQS. The commenter states 
that EPA must consistently apply its interpretation that nuisance 
provisions, odor provisions, and general prohibitions on air pollution 
do not belong in SIPs, because they do not have a reasonable connection 
to the NAAQS and/or are not designed to control NAAQS pollutants such 
that EPA could rely on them as a NAAQS attainment and maintenance 
strategy. According to the commenter, while the nuisance rule may have 
an impact on emissions, it is not a tool that measures Ohio's 
compliance with the NAAQS as required by section 110(a)(2) of the CAA. 
The commenter alleges that the ANR is an inappropriate measure for 
attaining and enforcing the NAAQS, and claims that EPA would never 
approve it as a strategy for reducing emissions in a SIP. Further, the 
commenter states that EPA cannot use NAAQS attainment as a reason to 
reintroduce the ANR into the Ohio SIP, and that the ANR is too broad, 
vague, inchoate, and unpredictable in its application to and impact 
upon criteria pollutant emissions from existing stationary sources to 
be SIP approvable. In addition, the commenter states that the ANR was 
not designed or intended by Ohio to federalize ``overkill'' reductions 
of criteria pollutant emissions more stringent than necessary to attain 
and maintain the NAAQS. Further, the commenter claims that Ohio has not 
utilized the ANR for the SIP strategies for the 2015 ozone standards, 
the 2012 p.m. standard, and the ``bump up'' to moderate ozone 
nonattainment in the Cleveland area. In the upcoming Canton lead 
submittal to address the SIP call, according to the commenter, Ohio EPA 
will not rely on the ANR for attainment of the NAAQS. The commenter 
further states that EPA dictates a rigorous methodology for the 
approval of a SIP to address a revised NAAQS or a violation of the 
NAAQS. For example, the commenter notes that the various steps in 
developing an attainment demonstration SIP are involved and lengthy, 
and claims that none of those steps were used by EPA when it proposed 
to reinstate the nuisance rule into the Ohio SIP.
    Response: EPA disagrees with the commenter's statement that the ANR 
is not appropriate for inclusion in the SIP because it fails the test 
for approval of a SIP, which in the CAA as it existed in 1974 was that 
the SIP ``includes emission limitations, schedules, and timetables for 
compliance with such limitations, and such other measures as may be 
necessary to insure attainment and maintenance of [the NAAQS].''
    The commenters misunderstand what the State is required to show to 
include a certain emissions limitation or control measure in its SIP. 
States are generally

[[Page 6818]]

not required under CAA section 110 to ``rely upon'' a measure to model 
attainment or maintenance of the NAAQS in order for that measure to be 
eligible for inclusion in the SIP. A certain subset of SIPs, namely 
nonattainment SIPs under part D of the CAA, do require certain 
technical analyses to demonstrate measures included in the 
nonattainment SIP will model attainment or maintenance of the NAAQS, 
but this is not a requirement for each and every SIP submission. Ohio 
itself has submitted a number of SIPs that do not include a 
demonstration that its measures model attainment or maintenance of the 
NAAQS.\24\ As stated in previous comment responses, Congress ``left to 
the States considerable latitude in determining specifically how the 
[NAAQS] would be met. This discretion includes the continuing authority 
to revise choices about the mix of emission limitations'' \25\ in order 
to ensure implementation, maintenance, and enforcement of the 
NAAQS.\26\
---------------------------------------------------------------------------

    \24\ EPA notes that Ohio has not always demonstrated attainment 
with certain NAAQS through modeling. The State has also demonstrated 
attainment with a particular standard by providing monitoring data, 
emissions inventories, and permanent and enforceable control 
measures responsible for the reduction in emissions. See EPA 
approvals of redesignations for the 1997 Ozone NAAQS standard in the 
Cincinnati-Hamilton Area [75 FR 26118 (May 11, 2010)], Cleveland-
Akron-Lorain Area [74 FR 47414 (September 15, 2009)], Columbus Area 
[74 FR 47404 (September 15, 2009)], and the Dayton-Springfield Area 
[72 FR 45169 (August 13, 2007)]; the 1997 annual and 2006 24-hour 
PM2.5 NAAQS standards in the Cleveland-Akron-Lorain Area 
[78 FR 57270 (September 18, 2013)]; the 2008 Ozone NAAQS standard in 
the Cincinnati Area [81 FR 91035 (December 16, 2016)] and the 
Columbus Area [81 FR 93631 (December 21, 2016)]; and the 2015 Ozone 
NAAQS standard in the Cincinnati area [87 FR 35104 (June 9, 2022)] 
and the Columbus area [84 FR 43508 (August 21, 2019)].
    \25\ Train, 421 U.S. at 87.
    \26\ EPA also notes that Ohio has submitted control measures for 
inclusion its SIP that do not specifically quantify the amount of 
emissions reductions such measures would achieve, but that still 
contribute to implementation, maintenance, and enforcement of the 
NAAQS. See, e.g., EPA approval of Ohio's Open Burning Rules [84 FR 
29378 (June 24, 2019), originally approved into the SIP at 43 FR 
4611 (Feb. 3, 1978)].
---------------------------------------------------------------------------

    Moreover, the ANR does have a demonstrated connection to 
implementation, maintenance, and enforcement of the NAAQS, and is 
therefore properly included in Ohio's SIP. As described in a previous 
comment response, the Southern District of Ohio has confirmed that the 
ANR meets the definition of an emission limitation as defined under CAA 
section 302(k). Again, we note that the State has the discretion to 
revise its ``choices about the mix of emission limitations'' in its SIP 
at any time, Train, 421 U.S. at 87, and that EPA will approve such 
choices provided they are consistent with all CAA requirements. The ANR 
has been used in a number of actions to enforce the NAAQS. As such, the 
State of Ohio properly included the ANR in its SIP, and EPA's November 
2020 Final Rule was in error.
    With respect to specific attainment demonstrations related to SIP 
calls and relatively recently promulgated NAAQS cited by commenters, 
the State was not required to rely on the ANR in these attainment 
demonstrations in order to allow the ANR to remain in the SIP. As 
explained, states have wide discretion in how they implement the 
requirement to provide for ``implementation, maintenance, and 
enforcement'' of the NAAQS, and states can and do include control 
measures in their SIPs that are not cited in their modeled attainment 
demonstrations. Typically, emissions reductions that are modeled in the 
attainment demonstration are required for the state to attain the NAAQS 
by the applicable attainment date. But as discussed above, states' 
discretion in crafting their SIPs also encompasses the flexibility that 
``[s]tates may submit implementation plans more stringent than federal 
law requires'' and the Supreme Court has instructed that EPA ``must 
approve such plans if they meet the minimum requirements of Sec.  
110(a)(2).'' \27\ Thus, the mere fact that Ohio has not included the 
ANR in recent attainment demonstration submissions and therefore is not 
relying on the ANR in those demonstrations to result in a certain 
quantity of emissions reductions required to attain the NAAQS, does not 
mean that the ANR is not an approvable control measure for inclusion in 
the SIP.
---------------------------------------------------------------------------

    \27\ Union Elec., 427 U.S. at 265.
---------------------------------------------------------------------------

    Comment: The commenter asserts that the nuisance rule cannot be 
modeled and does not contain numerical criteria, technical control 
measures, or specific compliance standards. According to the commenter, 
without extensive and technical parameters, the nuisance rule cannot be 
relied on in demonstrating that a state has an approvable SIP. The 
commenter claims that for this reason, EPA has been using the error-
correction authority in removing nuisance and other odor provisions 
similar to the ANR from other SIPs. The commenter further claims that 
EPA does not have the technical support to reintroduce the ANR into the 
SIP, and that the ANR does not contain a demonstration of how the rule 
is used to address the NAAQS. According to the commenter, EPA is not 
able to quantify the amount of emission reductions attributable to the 
application of the ANR or illustrate how the nuisance provisions have 
an impact on air quality through modeling. Without such analysis, the 
commenter claims that EPA fails to provide a justification that the ANR 
belongs in the SIP. The commenter states that it is clear that Ohio 
does not rely on the ANR to enforce the NAAQS because the applicability 
and emission impacts of the ANR are not known or knowable in advance 
and are not capable of pre-enforcement correlation with NAAQS 
attainment. The commenter alleges that the recent decision in the 
Environmental Committee \28\ case illustrates the problem of EPA 
reintroducing the nuisance rule into the SIP because the nuisance rule 
is simply not a ``necessary or appropriate'' emissions limitation or 
other control strategy that is needed to be part of a SIP.
---------------------------------------------------------------------------

    \28\ See Env't Comm. of the Fla. Elec. Power Coordinating Grp., 
Inc. EPA, 94 F.4th 77 (D.C. Cir. 2024).
---------------------------------------------------------------------------

    Response: As explained above, EPA is not responsible for 
quantifying the amount of emission reductions attributable to the 
application of the ANR, nor is EPA required to illustrate how the 
nuisance provisions have an impact on air quality through modeling or 
other technical justifications. Rather, the State is responsible for 
determining the appropriate mix of emissions limitations and control 
measures to ensure the SIP's compliance with CAA requirements. And as 
emphasized previously, ``[e]ach State is given wide discretion in 
formulating its [SIP], and the Act provides that the [EPA] `shall 
approve' the proposed plan if it has been adopted after public notice 
and hearing and if it meets'' the requirements of CAA section 
110(a)(2).\29\
---------------------------------------------------------------------------

    \29\ Union Elec., 427 U.S. at 250.
---------------------------------------------------------------------------

    As a general matter, EPA is tasked with evaluating SIP submissions 
for compliance with the CAA requirements, not with overriding state 
choices with respect to the appropriate mix of emissions limitations 
and control measures to meet those requirements.\30\ And in this 
particular action, pursuant to the Sixth Circuit's remand of our 
November 2020 Final Rule, EPA must evaluate whether that November 2020 
Final Rule unilaterally removing the ANR from the Ohio SIP was a proper 
use of our authority under CAA section 110(k)(6). For the reasons 
explained at length in this action, EPA has

[[Page 6819]]

concluded that our November 2020 Final Rule revising the Ohio SIP was 
in error, and EPA has decided to reinstate the ANR into the SIP for 
those reasons.
---------------------------------------------------------------------------

    \30\ See, e.g., Mich. v. EPA, 213 F.3d 663, 687 (D.C. Cir. 2000) 
(``While the states have considerable latitude in fashioning SIPs, 
the CAA 'nonetheless subjects the States to strict minimum 
compliance requirements' and gives the EPA the authority to 
determine a state's compliance with the requirements'' (citing Union 
Elec., 427 U.S. at 256-57)).
---------------------------------------------------------------------------

    Regarding the Environmental Committee decision, EPA disagrees with 
the commenter with respect to that decision's implications for the 
action here. That decision speaks to what is required for EPA to 
determine whether certain emissions limitations are substantially 
inadequate such that EPA could issue a SIP call under CAA section 
110(k)(5) with respect to those emissions limitations.\31\ In this 
action, EPA is not required to make a finding as to whether a 
particular emissions limitation is necessary or appropriate to ensure 
compliance with CAA requirements. To the contrary, EPA is concluding 
that EPA improperly disregarded the ANR's role in enforcement of the 
NAAQS, and improperly took action to override the State's decision to 
include the ANR in its SIP by unilaterally removing it in our November 
2020 Final Rule. Accordingly, EPA is correcting that error in this 
action.
---------------------------------------------------------------------------

    \31\ See, e.g., Env't Comm., 94 F.4th at 100.
---------------------------------------------------------------------------

    Comment: The commenter alleges the ANR is not part of Ohio's 
infrastructure SIP, which provides for the enforcement of the NAAQS. 
The commenter states that the CAA mandates a program for enforcement of 
the NAAQS through the development of an infrastructure SIP for 
enforcement of the control measures relied upon to attain and maintain 
the NAAQS. The commenter notes that EPA's Infrastructure SIP guidance 
requires the SIP to specifically identify the ``statutes, regulations, 
or other provisions . . . that provide for enforcement of those 
emission limits'' that have been identified as being necessary for 
NAAQS attainment and maintenance. According to the commenter, a state's 
program to ``enforce the NAAQS'' is therefore an EPA-approved program 
of specifically identified statutes and rules, not an ad hoc collection 
of any rules that have the potential to impact air emissions. The 
commenter alleges that the only statutory or regulatory provision that 
Ohio EPA has identified in its infrastructure SIP for the purposes of 
enforcing the NAAQS is O.R.C. section 3704.03(R), and that EPA cannot 
broaden the infrastructure SIP by unilaterally adding the ANR.
    Response: EPA has issued non-binding guidance on what EPA refers to 
as ``infrastructure SIP submissions.'' \32\ As stated in that guidance 
document, the ``conceptual purpose of an infrastructure SIP submission 
is to assure that the air agency's SIP contains the necessary 
structural requirements for the new or revised NAAQS, whether by 
establishing that the SIP already contains the necessary provisions, by 
making a substantive SIP revision to update the SIP, or both.'' \33\
---------------------------------------------------------------------------

    \32\ See Stephen D. Page, ``Guidance on Infrastructure State 
Implementation Plan (SIP) Elements under Clean Air Act Sections 
110(a)(1) and 110(a)(2)'', September 13, 2013, available at https://www.epa.gov/sites/default/files/2015-12/documents/guidance_on_infrastructure_sip_elements_multipollutant_final_sept_2013.pdf.
    \33\ Id. at 2.
---------------------------------------------------------------------------

    The commenter seems to suggest that every provision in a state's 
SIP that is used to enforce the NAAQS must be included in the state's 
infrastructure SIP submission, and that if a provision that is used to 
enforce the NAAQS is not included in that SIP submission, it is somehow 
improper for the state to include it in the SIP at all. However, EPA 
does not apply such a rigid approach to SIP submissions, nor is the 
commenter's suggested approach mandated by the CAA. The CAA does not 
indicate that all SIP provisions intended to enforce the NAAQS must be 
included in the ``infrastructure SIP submission''--in fact, the CAA 
does not mention ``infrastructure SIP submissions'' at all. EPA has 
created the structure and deadlines for states to submit what we refer 
to as infrastructure SIP submissions in order to ensure that states 
meet certain CAA requirements. And as mentioned, the purpose of that 
SIP submission is to ensure that the SIP ``contains the necessary 
structural requirements'' for a new or revised NAAQS.
    EPA therefore does not take the position that every single 
provision that is ever used to enforce the NAAQS must be included in a 
state's infrastructure SIP. Infrastructure SIP submissions are distinct 
from nonattainment plan SIP submissions, which also contain emissions 
limitations and methods for enforcement, such as required monitoring, 
recordkeeping, and reporting requirements. Just because a state does 
not include a certain provision in its infrastructure SIP submission 
does not mean that it is improper for the state to then use that 
provision for enforcement purposes.
    Moreover, the commenter alleges that EPA is impermissibly 
broadening the infrastructure SIP by reinstating the ANR into the SIP. 
EPA is not, and could not, unilaterally place the ANR into an 
infrastructure SIP submission that has already been submitted and 
approved by EPA. EPA is not broadening the infrastructure SIP, rather, 
it is merely reinstating the ANR to the Ohio SIP as it existed prior to 
EPA's action in the November 2020 Final Rule, which for the reasons we 
have described in this action, we have determined was in error.
    Comment: The commenter states that neither the Constitution nor the 
CAA permits EPA to delegate responsibility for establishing SIP 
emission control requirements to the Federal judiciary. The commenter 
alleges that the Proposed Rule is inconsistent with the CAA because it 
would give Federal district courts jurisdiction to decide, in CAA 
citizen suits, the source-specific controls needed to attain and 
maintain, and enforce, the NAAQS. The commenter states that the 
Constitution does not allow states to ordain and establish Federal 
judicial power, and the CAA should not be read to include any implicit 
delegation of that power to the states. In addition, the commenter 
notes that section 110 of the CAA gives each state primary authority to 
choose the mix of source-specific emission controls and associated 
monitoring, testing, and enforcement provisions that will suffice to 
attain and maintain the NAAQS. According to the commenter, including a 
nuisance rule in a SIP would effectively delegate state executive 
authority under section 110 to Federal judges. Finally, the commenter 
notes that section 307(b) of the CAA gives Federal circuit courts, not 
district courts, exclusive jurisdiction to review EPA actions to 
determine the approvability of state plans to achieve the NAAQS and 
state-promulgated SIP measures to enforce those plans.
    Response: As stated throughout this action, EPA agrees with the 
commenter that section 110 of the CAA gives each state primary 
authority to choose the mix of source-specific emission controls and 
associated monitoring, testing, and enforcement provisions that will 
suffice to attain and maintain the NAAQS. To that end, in this action, 
EPA is restoring the ANR as Ohio had included it and as it had existed 
for more than four decades in the Ohio SIP prior to our erroneous 
action to remove it in November 2020.
    With respect to the commenter's contention that Ohio's inclusion of 
the ANR in its SIP impermissibly delegates state authority to Federal 
judges, EPA observes that the CAA is structured around the principle of 
cooperative federalism. In other words, the CAA creates a system of 
shared state and Federal responsibility. With respect to enforcing the 
SIP, a state must provide ``necessary assurances'' that it has the 
authority to enforce SIP provisions as a prerequisite for EPA to 
approve those

[[Page 6820]]

provisions into the SIP. See CAA section 110(a)(2)(E). Once a provision 
is approved into the SIP, the state retains the authority to enforce 
it, and in addition, EPA has the authority to enforce it, see CAA 
section 113, as do members of the public, under the CAA section 304 
citizen suit provision. Thus, Federal enforcement of SIP provisions is 
integral to the structure of the CAA, whether by EPA or by the public. 
The commenter is correct that this could result (and, has in the past 
resulted) in CAA citizen suit claims to enforce the ANR in Federal 
district courts. But this does not mean that the states are delegating 
or establishing power in the Federal judiciary. This is just the CAA's 
structure of cooperative federalism that Congress created. The ANR can 
be enforced in state court, and it can be enforced in Federal court 
because it is part of the federally-approved SIP. The same is true of 
any SIP provision in any state. To the extent the commenter has an 
issue with the CAA's cooperative federalism model, that is of course 
outside the scope of the current rulemaking.
    Additionally, EPA agrees with the commenter that CAA section 307(b) 
gives Federal circuit courts, not district courts, exclusive 
jurisdiction to review EPA actions on SIPs. The commenter appears to be 
conflating enforcement of SIP provisions (which as mentioned, could 
occur through state or Federal court actions), with Federal circuit 
court review of EPA actions on SIP submissions. Nothing about this 
action indicates that EPA disagrees that Federal circuit court review 
is the appropriate forum for review of EPA actions on SIP submissions.
    Comment: The commenter notes that EPA contends it should have first 
performed an anti-backsliding analysis before correcting the SIP. 
However, according to the commenter, SIP corrections do not require an 
anti-backsliding analysis. The commenter asserts that requirements 
under CAA section 193 would not apply to the removal of the ANR from 
Ohio's SIP for attainment areas because the ANR is not a ``control 
requirement.'' The commenters further assert that, because the ANR's 
inclusion in the Ohio SIP was in error, it is not a ``control 
requirement'' triggering the need for an anti-backsliding analysis upon 
removal from the SIP under CAA section 193, 42 U.S.C. 7515.
    The commenters also argue that EPA's interpretation of the anti-
backsliding provision in CAA section 193 would conflict with EPA's SIP 
correction authority under CAA section 110(k)(6).
    According to the commenters, if the ANR is not a necessary or 
appropriate element of a SIP, then removing it cannot be considered 
backsliding under CAA section 110(l), because an anti-backsliding 
analysis is only concerned with emissions of criteria pollutants in 
areas that are non-attainment for those pollutants. The commenters 
state that since emissions addressed by the ANR cannot be quantified, a 
backsliding analysis is not justified, and that given the State's 
position, engaging in a backsliding analysis does not make sense. The 
commenters also contend that even if an anti-backsliding analysis were 
required, EPA must conduct it before finalizing this rulemaking.
    Response: EPA disagrees with the commenter's claim that an anti-
backsliding analysis was not required for EPA's November 2020 Final 
Rule removing the ANR from the Ohio SIP. The plain language of CAA 
section 193 precludes this conclusion.
    CAA section 193 provides, in relevant part, that no control 
requirement in effect before November 15, 1990, ``in any area which is 
a nonattainment area for any air pollutant may be modified after 
November 15, 1990, in any manner unless the modification insures 
equivalent or greater emission reductions of such air pollutant'' 
(emphasis added). The CAA does not specifically define what qualifies 
as a ``control requirement'' in the context of section 110 SIPs, and 
EPA therefore interprets the term broadly in accordance with its plain 
meaning, i.e., that it refers to any ``requirement'' that imposes some 
form of ``control'' with respect to any of the NAAQS pollutants. The 
term ``control requirement'' is similar to the language in CAA section 
110(a)(2)(A) referring to ``emissions limitations and other control 
measures, means, or techniques.'' As explained and illustrated by the 
specific examples in a previous comment response, the ANR has been 
invoked on multiple occasions with the goal and ultimate outcome of 
limiting emissions of criteria pollutants and their precursors. Thus, 
the ANR has been used as a measure, means, or technique, to control 
relevant emissions, which means that it squarely falls within the 
definition of a ``control requirement'' as the term is used in CAA 
section 193.
    Thus, CAA section 193 prohibits the modification of the ANR ``in 
any manner'' unless there is a showing that the modification would 
result in equivalent or greater emissions reductions, which is commonly 
referred to as an anti-backsliding analysis. The plain meaning of 
``modify'' is to make a change to something, and the qualifier ``in any 
manner'' indicates that the requirement for an anti-backsliding 
analysis is triggered by any possible change to a control requirement 
that otherwise meets the requirements of this section. EPA does not see 
any statutory basis for concluding that an anti-backsliding analysis 
was not required for EPA's November 2020 Final Rule removing the ANR 
from Ohio's SIP. To the contrary, such an interpretation would directly 
undermine the plain language of section 193, which encompasses changes 
to the SIP made ``in any manner.''
    For support, the commenter cites to a 1996 SIP action approving 
Arizona's contingency measures and withdrawing its Federal 
Implementation Plan (FIP) ``contingency process,'' in which EPA took 
the position that CAA section 193 was not applicable. In the context of 
this action, EPA acknowledged that ``the term `control requirement' is 
not defined in the Act,'' and stated that ``it is generally viewed as a 
discrete regulation directed at a specific source of pollution.'' \34\ 
EPA distinguished this from the ``contingency process'' at issue in 
that action, which was not grounded in a statutory requirement and was 
based on 1982 guidance ``designed to fill a perceived gap in the 
absence of a statutory requirement.'' \35\ The 1982 guidance required 
``a list of planned transportation measures and projects that may 
adversely affect air quality and that will be delayed, while the SIP is 
being revised'' (emphasis added), and ``a description of the process 
that will be used to determine and implement additional transportation 
measures beneficial to air quality that will compensate for the 
unanticipated shortfalls in emission reduction.'' Further, in the 1996 
action, EPA explained how the 1990 Amendments to the CAA filled the 
identified statutory gap by adding the section 172(c)(9) contingency 
measure requirement to the CAA, rendering EPA's pre-amendment 1982 
guidance, and the ``contingency process'' implementing that guidance, 
``inconsistent with this new statutory scheme'' and thus ``ineffective 
under section 193.'' \36\
---------------------------------------------------------------------------

    \34\ 61 FR 51999 at 51602 (October 3, 1996).
    \35\ Id.
    \36\ Id.
---------------------------------------------------------------------------

    In other words, EPA determined that the ``contingency process'' was 
not a control measure because ``[a] list of highway projects that may 
be delayed and a description of actions that may occur at some later 
date are not control requirements,'' and because section 193 precluded 
the contingency process under the first part of that section,

[[Page 6821]]

which reads: ``Each regulation, standard, rule, notice, order and 
guidance promulgated or issued by the Administrator as in effect before 
November 15, 1990 shall remain in effect according to its terms, except 
to the extent otherwise provided under this chapter, inconsistent with 
any provision of this chapter, or revised by the Administrator.'' \37\ 
The ANR is distinguishable from the ``contingency process'' because (1) 
it can be considered a control requirement with demonstrated impacts on 
emissions, as explained at length in this action, and (2) it is not 
based on outdated guidance that has been superseded by the CAA 
Amendments of 1990.
---------------------------------------------------------------------------

    \37\ Id. (emphasis in original) (citing to CAA section 193).
---------------------------------------------------------------------------

    With respect to the commenter's assertions regarding the 
requirements of CAA section 110(l), EPA notes that we did not rely on 
CAA section 110(l) in our proposed rule as a basis for determining our 
prior November 2020 Final Rule was in error. As discussed elsewhere, 
EPA has concluded that an anti-backsliding analysis should have been 
conducted for the November 2020 Final Rule under section 193. While CAA 
section 110(l) was not a basis for EPA's proposed rule, EPA disagrees 
with the commenter that if the ANR is not a necessary or appropriate 
element of a SIP, then removing it cannot be considered backsliding 
under CAA section 110(l). The commenter misstates the requirements of 
110(l), which prohibits EPA from approving a SIP revision if it would 
interfere with any applicable requirement concerning attainment of the 
NAAQS, or any other applicable requirement of the CAA. Whether the ANR 
is a necessary or appropriate element of a SIP because the State has 
not relied on it for attainment of the NAAQS therefore is not the only 
relevant inquiry under CAA section 110(l). As CAA section 110(l) is not 
applicable to the present action, EPA need not consider whether we are 
prohibited under this provision from approving removal of the ANR from 
the SIP.
    Finally, EPA disagrees with the commenter that EPA is required to 
conduct an anti-backsliding analysis for this action reinstating the 
ANR into the Ohio SIP. The commenter misstates the standard that 
section 193 applies in asserting that EPA must determine that removing 
the ANR from Ohio's SIP would result in lesser reductions. Under 
section 193, the only requirement is that the modification must insure 
``equivalent or greater reductions.'' The commenter identifies no basis 
for concluding that reinstating the ANR does not provide for 
``equivalent or greater reductions,'' i.e., that it would increase 
emissions. As discussed at length in this action, the ANR has been used 
to enforce the NAAQS and has resulted in emissions reductions in the 
past. The ANR has also been deemed an emission limitation within the 
meaning of CAA section 302(k).\38\ There is therefore no basis to 
conclude that reinstating the ANR into the SIP would result in 
increased emissions. There is reason to believe, based on the record, 
that having the ANR in the SIP will continue to result in emissions 
reductions. But even if that is not the case, the ANR would still 
result in at least ``equivalent reductions'' as would not including it 
in the SIP at all.
---------------------------------------------------------------------------

    \38\ Ashtabula, 633 F. Supp. 2d at 528.
---------------------------------------------------------------------------

    Comment: The commenter states that there are multiple mechanisms by 
which Ohio citizens can redress alleged air pollution at the state 
level regardless of whether the ANR is in the SIP. In contrast, 
according to the commenter, reinstating the ANR would harm Ohio 
businesses, with no corresponding benefit to the environment because 
potential citizen suits under the CAA could result in attorneys' fees 
being awarded to prevailing parties.
    Response: With respect to the commenter's assertion that there are 
multiple mechanisms by which Ohio citizens can address air pollution 
regardless of whether the ANR is in the SIP, EPA wholeheartedly 
supports providing different mechanisms for the public to address air 
pollution. In this action, EPA is not making a determination as to 
whether the Ohio State system provides for adequate opportunities for 
the public to address air pollution. Instead, EPA is merely determining 
that its November 2020 Final Rule removing the ANR from the Ohio SIP 
was deficient because EPA failed to consider the ANR's role in the 
enforcement of the NAAQS, and because EPA failed to conduct an anti-
backsliding analysis under CAA section 193.
    EPA understands the commenter's assertion that reinstating the ANR 
into the SIP would harm Ohio businesses to suggest that the 
consequences of noncompliance with the ANR could be more severe in a 
CAA citizen suit brought in Federal court, because prevailing parties 
may be awarded attorney's fees. While EPA acknowledges that this could 
be a consequence of noncompliance with the ANR, EPA does not find this 
a relevant consideration for this action. EPA is not obligated, and the 
commenter has not identified any statutory or otherwise legal basis for 
such obligation, to consider the potential adverse consequences of 
noncompliance with the ANR for Ohio businesses in determining whether 
its November 2020 Final Rule was in error.

III. What action is EPA taking?

    EPA has considered the comments received on its February 2024 
Proposed Rule, and is finalizing its action as proposed, for the 
reasons described in the February 2024 Proposed Rule, this final rule, 
and the response to comments herein. EPA is taking this action to 
reverse its November 2020 removal of the ANR and to reinstate OAC 3745-
15-07 into the Ohio SIP, under its authority in CAA section 110(k)(6) 
and its inherent reconsideration authority, and consistent with the 
requirements of CAA section 110(a)(2). EPA has determined that its 
prior action removing OAC 3745-15-07 from the Ohio SIP 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. EPA has determined that the ANR was appropriately included in the 
Ohio SIP as part of the State's collection of ``enforceable emission 
limitations and other control measures, means, or techniques . . . as 
may be necessary or appropriate to meet the applicable requirements of 
[the CAA].'' See CAA section 110(a)(2). Accordingly, EPA is recodifying 
this reinstatement by revising the appropriate paragraph under 40 CFR 
part 52, subpart KK, Sec.  52.1870 (Identification of Plan).

IV. Incorporation by Reference

    In this action, EPA is reinstating regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of the Ohio 
Regulations described in section III. of this preamble and set forth in 
the amendments to 40 CFR part 52 below. EPA has made, and will continue 
to make, these documents generally available through 
www.regulations.gov and at EPA Region 5 Office (please contact the 
person identified in the FOR FURTHER INFORMATION CONTACT section of 
this preamble for more information). Therefore, these materials have 
been approved by EPA for inclusion in the SIP, have been incorporated 
by reference by EPA into that plan, are fully federally enforceable 
under sections 110 and 113 of the CAA as of

[[Page 6822]]

the effective date of the final rulemaking of EPA's approval, and will 
be incorporated by reference in the next update to the SIP 
compilation.\39\
---------------------------------------------------------------------------

    \39\ 62 FR 27968 (May 22, 1997).
---------------------------------------------------------------------------

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:
     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);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     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.);
     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);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it approves a state program;
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001); and
     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 communities with environmental justice 
(EJ) concerns to the greatest extent practicable and permitted by law. 
Executive Order 14096 (Revitalizing Our Nation's Commitment to 
Environmental Justice for All, 88 FR 25251, April 26, 2023) builds on 
and supplements E.O. 12898 and defines EJ as, among other things, the 
just treatment and meaningful involvement of all people, regardless of 
income, race, color, national origin, or Tribal affiliation, or 
disability in agency decision-making and other Federal activities that 
affect human health and the environment.
    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. 12898/14096 of achieving EJ for communities with EJ concerns.
    This action is subject to the Congressional Review Act, and EPA 
will submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by March 24, 2025. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

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: January 10, 2025.
Debra Shore,
Regional Administrator, Region 5.

    For the reasons stated in the preamble, 40 CFR part 52 is amended 
as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

0
2. In Sec.  52.1870, the table in paragraph (c) is amended under the 
section entitled ``Chapter 3745-15 General Provisions on Air Pollution 
Control'' by adding an entry for ``3745-15-07'' after the entry for 
``3745-15-06'' to read as follows:

Sec.  52.1870  Identification of plan.

* * * * *
    (c) * * *

                                          EPA-Approved Ohio Regulations
----------------------------------------------------------------------------------------------------------------
                                                           Ohio effective
         Ohio  citation               Title/subject             date        EPA approval date        Notes
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
                                                  * * * * * * *
                           Chapter 3745-15 General Provisions on Air Pollution Control
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
3745-15-07.....................  Air Pollution                   5/17/1982  8/13/1984, 49 FR   .................
                                  Nuisances Prohibited.                      32182.
 

[[Page 6823]]

 
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[FR Doc. 2025-00968 Filed 1-17-25; 8:45 am]
BILLING CODE 6560-50-P
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