Federal Register / Vol. 90, No. 12 / Tuesday, January 21, 2025 / Rules and Regulations 6811 

1EPA 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. 

2See ‘‘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. 

General of the United States. This action 

is not a ‘‘major rule’’ as defined by 5 

U.S.C. 804(2). The CRA allows the 

issuing agency to make a rule effective 

sooner than otherwise provided by the 

CRA if the agency makes a good cause 

finding that notice and comment 

rulemaking procedures are 

impracticable, unnecessary, or contrary 

to the public interest (5 U.S.C. 808(2)). 

The EPA has made a good cause finding 

for this action as discussed in Section II 

of this preamble, including the basis for 

that finding. 

Under section 307(b)(1) of the Clean 

Air Act, 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 it shall not postpone the 

effectiveness of such rule or action. This 

action may not be challenged later in 

proceedings to enforce its requirements 

(see CAA section 307(b)(2)). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Ammonia, Nitrogen oxides, Ozone, 

Particulate matter, Reporting and 

recordkeeping requirements, Sulfur 

oxides, Volatile organic compounds. 

Dated: January 13, 2025. 

Martha Guzman Aceves, 

Regional Administrator, Region IX. 

[FR Doc. 2025–01215 Filed 1–17–25; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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, panos.christos@

epa.gov. 

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 


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3See ‘‘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). 

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. 

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). 

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 letterwriting 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). 


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4 85 FR 73636 (November 19, 2020). 

5The 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. 

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 antibacksliding 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

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 


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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 § 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, 


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

7See Fisher, ‘‘Consent Decree’’ (September 14, 

2017), at 1. 

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. 

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. 

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 


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8Ashtabula, 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). 

10 Id. At 528–29. 

11See Sampson, ‘‘Complaint and Demand for a 

Jury Trial’’ (September 29, 2017), at ¶ 1. 

12See Sampson, ‘‘Defendants’ Memorandum in 

Support of Motion to Dismiss Counts Four (in part), 

Five, Seven, Ten, Fifteen, Sixteen, Eighteen, 

Nineteen, Twenty-Two, Twenty-Three, TwentyFour (in part), Thirty and Thirty-Two of Plaintiffs’ 

Complaint’’ (April 6, 2018), at 1; see also Sampson, 

‘‘Order’’ (September 30, 2021). 

13Ashtabula, 633 F. Supp. 2d at 528. 

14Train, 421 U.S. at 87. 

15State of Ohio v. Republic Steel, Case No. 

2021CV00949 (Stark County, Ohio). 

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: 

[Defendant’s argument] must be rejected 

based upon an examination of the plain 

language of CAA § [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 § [302(k)] of the CAA. 

Plaintiff can therefore bring Count Four 

under a CAA citizen suit.10

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. 

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. 

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. 

First, the Complaint states the 

‘‘Republic Steel is the only known 

source of lead in the vicinity of the 

Georgetown Rd. lead monitoring site’’ 


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16Republic 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. 20EPA 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. 

21Complaint at ¶ 35. 

22Republic Steel, ‘‘Final Consent Order and Final 

Judgment Entry’’ (December 12, 2023), at ¶ 16. 

23 Id. at ¶ 17. 

(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 (mg/m3) 

from March 2018 through May 2018, 

and 0.167 mg/m3 from January 2019 

through March 2019, while noting that 

the lead NAAQS is 0.15 mg/m3.17 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 mg/m3 on May 7, 9, and 13 

of 2021, respectively.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

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 


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24EPA 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-AkronLorain 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 ClevelandAkron-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)]. 

25Train, 421 U.S. at 87. 

26EPA 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)]. 27Union Elec., 427 U.S. at 265. 

28See Env’t Comm. of the Fla. Elec. Power 

Coordinating Grp., Inc. EPA, 94 F.4th 77 (D.C. Cir. 

2024). 

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

30See, 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)). 

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

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 

§ 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. 

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 preenforcement 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. 

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

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 


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31See, e.g., Env’t Comm., 94 F.4th at 100. 

32See 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. 

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. 

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. 

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 nonbinding 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

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 


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34 61 FR 51999 at 51602 (October 3, 1996). 

35 Id. 

36 Id. 

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 antibacksliding 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 antibacksliding 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 antibacksliding 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 antibacksliding 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

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, 


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

193). 38Ashtabula, 633 F. Supp. 2d at 528. 

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. 

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. 

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 antibacksliding 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, 

§ 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 


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39 62 FR 27968 (May 22, 1997). 

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

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 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

■ 2. In § 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: 

§ 52.1870 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED OHIO REGULATIONS

Ohio 

citation Title/subject Ohio effective date EPA approval date Notes 

*******

Chapter 3745–15 General Provisions on Air Pollution Control 

*******

3745–15–07 .... Air Pollution Nuisances Prohibited ......................... 5/17/1982 8/13/1984, 49 FR 32182 


ddrumheller on DSK120RN23PROD with RULES1
Federal Register / Vol. 90, No. 12 / Tuesday, January 21, 2025 / Rules and Regulations 6823 

1 89 FR 26817. 

2SCAQMD, ‘‘Final Coachella Valley Extreme 

Area Plan for the 1997 8-Hour Ozone Standard,’’ 

December 2020. 

3Letter dated December 28, 2020, from Richard 

W. Corey, Executive Officer, CARB, to John W. 

Busterud, Regional Administrator, EPA Region 9 

(submitted electronically December 29, 2020). 

4CARB, Staff Report, ‘‘2020 Coachella Valley 

Vehicle Miles Traveled Emissions Offset 

Demonstration,’’ release date January 22, 2021. 

5Letter dated March 15, 2021, from Richard W. 

Corey, Executive Officer, CARB, to Deborah Jordan, 

Acting Regional Administrator, EPA Region 9 

(submitted electronically March 18, 2021). 

6 89 FR 49815. 

7 89 FR 26817, 26826. 

8See Coachella Valley Ozone Plan, pp. 4–4 

through 4–17. 

EPA-APPROVED OHIO REGULATIONS—Continued 

Ohio 

citation Title/subject Ohio effective date EPA approval date Notes 

*******

* * * * * 

[FR Doc. 2025–00968 Filed 1–17–25; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2023–0448; FRL–11677– 

03–R9] 

Approval and Promulgation of 

Implementation Plans; State of 

California; Coachella Valley; Extreme 

Attainment Plan for 1997 8-Hour Ozone 

Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking final action to 

approve elements of a state 

implementation plan (SIP) submittal 

from the State of California to meet 

Clean Air Act (CAA) ‘‘Extreme’’ 

nonattainment area requirements for the 

1997 8-hour ozone national ambient air 

quality standards (NAAQS) in the 

Riverside Co. (Coachella Valley), CA 

nonattainment area (‘‘Coachella 

Valley’’). We are specifically approving 

the reasonable further progress (RFP) 

demonstration and the vehicle miles 

traveled demonstration. 

DATES: This rule is effective February 

20, 2025. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–R09–OAR–2023–0448. 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, e.g., Confidential Business 

Information (CBI) 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 through https://

www.regulations.gov, or please contact 

the person identified in the FOR FURTHER

INFORMATION CONTACT section for 

additional availability information. If 

you need assistance in a language other 

than English or if you are a person with 

a disability who needs a reasonable 

accommodation at no cost to you, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: Tom 

Kelly, Geographic Strategies and 

Modeling Section (AIR–2–2), EPA 

Region IX, 75 Hawthorne Street, San 

Francisco, CA 94105; phone: (415) 972– 

3856; or email: kelly.thomasp@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us,’’ 

and ‘‘our’’ refer to the EPA. 

Table of Contents 

I. Proposed Action 

II. Public Comments and the EPA’s 

Responses 

III. The EPA’s Action 

IV. Statutory and Executive Order Reviews 

I. Proposed Action 

A. Summary 

On April 16, 2024,1 the EPA proposed 

to approve two SIP submittals from the 

South Coast Air Quality Management 

District (SCAQMD or ‘‘District’’) and the 

California Air Resources Board (CARB) 

addressing the Extreme area planning 

requirements for the 1997 ozone 

NAAQS in Coachella Valley. The first 

submittal, the ‘‘Final Coachella Valley 

Extreme Area Plan for the 1997 8-Hour 

Ozone Standard’’ (‘‘Coachella Valley 

Ozone Plan’’ or ‘‘Plan’’),2 was prepared 

by the SCAQMD and submitted by 

CARB on December 29, 2020.3 We 

proposed to approve all elements of the 

Plan except the reasonably available 

control technology (RACT) 

demonstration, which we plan to 

address in a subsequent rulemaking. 

The second submittal, the ‘‘2020 

Coachella Valley Vehicle Miles Traveled 

Emissions Offset Demonstration’’ 

(‘‘VMT Offset Demonstration’’),4 was 

prepared by CARB and submitted on 

March 18, 2021.5 We proposed to 

approve the entire VMT Offset 

Demonstration. Our proposed action 

contains more information on the two 

submittals and our evaluation. 

On June 12, 2024, we finalized our 

proposed action on certain portions of 

the Coachella Valley Ozone Plan.6

Specifically, we finalized approval of 

the reasonably available control 

measures demonstration, the attainment 

demonstration, and the State’s 

demonstration that it has satisfied the 

clean fuels for boilers requirement for 

the Coachella Valley nonattainment 

area. Our June 12, 2024, notice stated 

that we intended to take final action on 

the remaining VMT Offset 

Demonstration and RFP demonstration 

in a future rulemaking. We are finalizing 

approval of these elements in this 

notice. 

B. Correction 

In summarizing the State’s 

photochemical modeling and the 

associated control measures, the EPA’s 

proposed rule incorrectly stated that the 

Coachella Valley control strategy for the 

1997 ozone NAAQS relies on aggregate 

emissions reduction commitments from 

the ‘‘Final 2016 Air Quality 

Management Plan’’ (‘‘2016 AQMP’’).7

While the Coachella Valley Ozone Plan 

discusses rules addressing the area’s 

progress related to commitments needed 

for the area to meet the 2008 ozone 

NAAQS by 2026, the emissions 

reductions associated with these rules 

are not reflected in the area’s inventory, 

and the Plan does not rely on the 

commitments to attain the 1997 ozone 

NAAQS in 2023.8

II. Public Comments and the EPA’s 

Responses 

The EPA’s proposed action provided 

a 30-day public comment period. During 

this period, we received comments from 

Air Law for All (ALFA), dated May 16, 

2024. These comments relate to our 

proposed action on the RFP 

demonstration. No comments were 

received on other parts of the proposal. 

The comments are summarized and 

addressed below. 


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