EPA proposal to restore Ohio Air Nuisance Rule is big win for Ohio citizens exposed to pollution

On February 22, the US EPA announced it intends to reinstate Ohio’s Air Nuisance Rule (ANR), a critical tool for Ohio residents and communities that the agency removed from Ohio’s State Implementation Plan (SIP) to enforce the Clean Air Act in 2020. If the agency’s proposed action is finalized after a 30-day public comment period, Ohio residents will once again be able to directly protect their health and property by using the ANR.

In announcing its proposed action, US EPA cited the facts and the law AltmanNewman urged the federal government to use to reject the illegal removal of the ANR from the SIP. That illegal removal four years ago has deprived Ohioans of their best tool to fight air pollution.

How we got here

AltmanNewman’s clients, along with Sierra Club and other environmental organizations, petitioned the Sixth Circuit Court of Appeals to review the 2020 decision removing the ANR. In our petition, we documented how the removal of this critical tool, on the books since 1974,  prevented individuals, local governments and fenceline communities from holding polluters accountable when the state and federal government failed to protect people, especially people who live close to polluters.

In 2021, Petitioners learned that US EPA’s decision was made five months after an intense lobbying effort initiated in 2019 by a law firm working furiously behind the scenes on behalf of company that had an ANR citizen suit claim pending against them.  Attorneys for the State of Ohio and US EPA argued for keeping this critical tool out of the SIP, and trade associations representing Ohio’s biggest polluting facilities filed a brief with the Court supporting ANR removal.

In February 2023, after deciding that the Petitioners had legal standing to challenge the ANR removal and setting forth guidelines for USEPA to use in the remand process, the Court sent the decision back to US EPA for “reconsideration.” Over the past year, US EPA has been reconsidering whether to put the ANR back into the SIP based on the Sixth Circuit’s decision.

Proposed reinstatement

Guided by the reasoning of the Court in its February 2023 decision, which had cited several instances where Ohio residents used the ANR both inside and outside of court to win reductions in air pollution prior to its removal in 2020, the US EPA is now proposing to restore the ANR to the SIP. In its announcement, US EPA acknowledges that its November 2020 action “failed to adequately consider the role the ANR plays in the enforcement” of the National Ambient Air Quality Standards (NAAQS) in Ohio.

Next steps – public comments

Despite this huge victory, the fight is not over. The State of Ohio is likely to challenge reinstatement of the ANR. Now, we must let USEPA know the importance and value of the ANR for Ohioans.

To comment on the proposal to restore the ANR:

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

ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R05–OAR–2020–0055 at https://www.regulations.gov, or via email to arra.sarah@epa.gov. For comments submitted at Regulations.gov, follow the online instructions for submitting comments.

For suggested talking points for comments, click here. For more information, click here.