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OCTC Moves to Intervene in Sixth Circuit Appeal of EPA’s Removal of the Nuisance Rule

On January 18, 2021, David Altman (on behalf of two individual clients) and the Sierra Club and Ohio Environmental Council filed an appeal in the Sixth Circuit to challenge EPA’s November 19, 2020 technical amendment correcting EPA’s prior erroneous approval of the air pollution nuisance rule, Ohio Adm.Code 3745-15-07, as part of Ohio’s State Implementation Plan (SIP). On the same day, Altman, the Sierra Club, Ohio Environmental Council, and Ohio Citizen Action filed a petition asking EPA to reconsider its final action removing the nuisance rule from the Ohio SIP. The petition for reconsideration claimed that reconsideration by EPA was mandatory under section 307(d)(7)(B) of the Clean Air Act because the grounds for objection arose after the close of the comment period and were of such central relevance that they could change the outcome of the final action.

On February 9, 2021, Ohio Attorney General David Yost moved on behalf of the State of Ohio to intervene in the appeal in support of EPA’s removal of the nuisance rule from the Ohio SIP. The Attorney General also filed a response to the environmental petitioners’ motion for EPA reconsideration on February 11, 2021, stating the “Ohio believes the final rule is correct and wishes for it to remain in place.” On February 18, 2021, the Ohio Chemistry Technology Council, along with the Ohio Chamber of Commerce and the Ohio Manufacturers’ Association, filed a motion to intervene in the Sixth Circuit case in support of EPA’s removal of the nuisance rule from Ohio’s SIP.

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 have the nuisance rule reinserted into Ohio’s federally approved plan.

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