Last month, U.S. Court of Appeals for the Sixth Circuit heard oral arguments on a suit filed by the Sierra Club, the Ohio Environmental Council, and two individuals represented by David Altman regarding Ohio's nuisance rule. Earlier this year, the Ohio Chemistry Technology Council filed an amicus brief in support of the removal of the nuisance rule from Ohio’s SIP and in opposition to U.S. Environmental Protection Agency's (EPA) alternative request to remand the matter. The Ohio Chamber of Commerce and the Ohio Manufacturers' Association joined OCTC on the amicus brief.
The brief was in response to EPA's action in April where the agency asked the court to remand the matter to EPA, without vacatur, so that EPA may consider whether a different procedure than SIP correction would have been “more appropriate,” and to determine whether EPA was allowed to remove the rule from Ohio’s SIP without requiring Ohio to make up for any emissions reductions caused by the nuisance rule. OCTC agree with the 2020 decision by EPA that the nuisance rule should never have been included in Ohio’s SIP. Especially since over a period of decades similar rules have been removed from the SIPs of numerous states including California, New York, Michigan, Georgia, Minnesota, and others.
OCTC has been advocating removal of the nuisance rule from the Ohio SIP since the late 1990s because it does not relate to attainment, implementation, maintenance, or enforcement of the National Ambient Air Quality Standards (NAAQS), and it exposes Ohio companies to federal citizen suits over amorphous nuisance claims where plaintiffs’ lawyers can be awarded attorneys’ fees even if they lose. Other states in Region 5 never had a nuisance rule in their SIPs, or had their nuisance rule removed from their SIPs. OCTC will remain vigilant in its opposition to the efforts of the environmental groups to have the nuisance rule reinserted into Ohio’s federally approved plan.