Air Plan Approval; Ohio; Withdrawal of Technical Amendment, 13304-13308 [2024-03555]
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Federal Register / Vol. 89, No. 36 / Thursday, February 22, 2024 / Proposed Rules
any time invoke its authority under the
CAA, including, for example, sections
113, 167, 205, 211 or 213, to enforce the
requirements or prohibitions of the state
plan, independently of any state
enforcement effort. In addition, citizen
enforcement under section 304 of the
CAA is likewise unaffected by this, or
any, state audit privilege or immunity
law.
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V. Incorporation by Reference
In this document, the EPA is
proposing to include in a final EPA rule
regulatory text that includes
incorporation by reference. In
accordance with requirements of 1 CFR
51.5, the EPA is proposing to
incorporate by reference the VADEQ
regulation amending 9VAC5–20–204 to
add a new sulfur dioxide nonattainment
area and two other minor changes as
discussed in section II of this document,
‘‘Summary of SIP Revision and EPA
Analysis.’’ The EPA has made, and will
continue to make, these materials
generally available through
www.regulations.gov and at the EPA
Region 3 Office (please contact the
person identified in the FOR FURTHER
INFORMATION CONTACT section of this
preamble for more information).
VI. 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, the
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 proposed 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 13563 (76 FR 3821,
January 21, 2011);
• 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);
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• Does not have federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• 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 Clean Air Act;
The SIP is not approved to apply on
any Indian reservation land as defined
in 18 U.S.C. 1151 or in any other area
where the EPA or an Indian tribe has
demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the rule amending the list of
Virginia nonattainment areas to include
a newly designated sulfur dioxide (SO2)
nonattainment area 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 minority populations
and low-income populations to the
greatest extent practicable and
permitted by law. The EPA defines
environmental justice (EJ) as ‘‘the fair
treatment and meaningful involvement
of all people regardless of race, color,
national origin, or income with respect
to the development, implementation,
and enforcement of environmental laws,
regulations, and policies.’’ The EPA
further defines the term fair treatment to
mean that ‘‘no group of people should
bear a disproportionate burden of
environmental harms and risks,
including those resulting from the
negative environmental consequences of
industrial, governmental, and
commercial operations or programs and
policies.’’
The VADEQ did not evaluate
environmental justice considerations as
part of its SIP submittal; the CAA and
applicable implementing regulations
neither prohibit nor require such an
evaluation. The 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
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is no information in the record
inconsistent with the stated goal of
Executive Order 12898 of achieving
environmental justice for people of
color, low-income populations, and
Indigenous peoples.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Ozone, Reporting and recordkeeping
requirements, Volatile organic
compounds.
Adam Ortiz,
Regional Administrator, Region III.
[FR Doc. 2024–03616 Filed 2–21–24; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R05–OAR–2020–0055; FRL–11687–
01–R5]
Air Plan Approval; Ohio; Withdrawal of
Technical Amendment
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to correct the
November 19, 2020, removal of 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 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, as
directed by the Court, EPA is proposing
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.
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. Once submitted, comments
cannot be edited or removed from
Regulations.gov. For either manner of
submission, EPA may publish any
comment received to its public docket.
Do not submit electronically any
SUMMARY:
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information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. EPA will generally not consider
comments or comment contents located
outside of the primary submission (i.e.
on the web, cloud, or other file sharing
system). For additional submission
methods, please contact the person
identified in the FOR FURTHER
INFORMATION CONTACT section. For the
full EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Christos Panos, Attainment Planning
and Maintenance Section, Air Programs
Branch (AR–18J), Environmental
Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois
60604, (312) 353–8328, panos.christos@
epa.gov. The EPA Region 5 office is
open from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding
Federal holidays and facility closures
due to COVID–19.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA.
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I. Background
A. Procedural History
Until EPA’s November 2020 removal
action, a version of the ANR had been
part of the Ohio SIP since 1974. EPA
approved Ohio rule AP–2–07, ‘‘Air
pollution nuisances prohibited,’’ into
the Ohio SIP on April 15, 1974 (39 FR
13542). Subsequently, Ohio made minor
changes to the rule and submitted the
amended rule, renumbered as Ohio
Administrative Code (OAC) 3745–15–
07, as a SIP revision. EPA approved the
amended rule into the SIP on August 13,
1984 (49 FR 32182). OAC 3745–15–07
prohibits the ‘‘emission or escape into
the open air from any source or sources
whatsoever, of smoke, ashes, dust, dirt,
grime, acids, fumes, gases, vapors,
odors, 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.’’
In a proposed rule published on
March 23, 2020 (85 FR 16309), EPA
proposed to conclude that it had erred
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in originally approving the ANR into
Ohio’s SIP. In its justification, EPA
noted that it had no information
indicating that Ohio had relied on, or
ever intended to rely on, the ANR for
attainment or maintenance of any
National Ambient Air Quality Standards
(NAAQS). Further, in response to EPA’s
inquiry, Ohio informed EPA that it had
not relied on the ANR for the purposes
of planning, nonattainment
designations, redesignation requests,
maintenance plans, or determination of
nonattainment areas or their boundaries
under the Clean Air Act (CAA).
Therefore, in the final rule published on
November 19, 2020 (85 FR 73636), EPA
concluded it had erred by including the
ANR in Ohio’s SIP and removed the
ANR using the error-correction
mechanism under the authority of
section 110(k)(6) of the CAA, 42 U.S.C.
7410(k)(6).
On January 19, 2021, environmental
groups and private citizens petitioned
the Sixth Circuit for review of EPA’s
November 19, 2020, removal of the ANR
(Sierra Club v. EPA, No. 21–3057). In
briefing this matter before the Court,
EPA argued that Petitioners did not
have standing to bring this challenge.
See Brief for Respondents at 1, Sierra
Club v. EPA, No. 21–3057 (6th Cir. Apr.
25, 2022). However, in the event that the
Court found Petitioners did have
standing, EPA requested a voluntary
remand of the final rule, which was
granted by the Court on February 10,
2023. EPA represented to the Court that
such a remand would allow the Agency
to consider: (1) whether the section
110(k)(6) error-correction mechanism
was the most appropriate vehicle for
removing the ANR from Ohio’s SIP; and
(2) whether EPA should have
considered performing an ‘‘antibacksliding’’ analysis under section 193
of the CAA, 42 U.S.C. 7515, concerning
the removal of the nuisance rule from
Ohio’s SIP. Id. at 23–24. In a declaration
filed in the Sixth Circuit, EPA
represented that, in the course of this
reevaluation, it could supplement the
administrative record with additional
information and analysis, take and
consider additional public comment,
and provide additional explanation of
its assessment of the challenged aspects
of the final rule. See ‘‘Declaration in
Support of Request for Voluntary
Remand’’ at para. 9, Brief for
Respondents, Sierra Club v. EPA, No.
21–3057 (6th Cir. Apr. 25, 2022). EPA
stated that, upon remand, it could also
evaluate whether any aspects of the
ANR could be included in the SIP if
they met applicable requirements for the
implementation, maintenance, and
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enforcement of the NAAQS. Id. EPA
committed to completing its
reevaluation within 12 months. Id. at
para. 10.
B. Public Comments on EPA’s Proposal
To Remove the ANR
During the public comment period for
the March 23, 2020, proposed rule
removing the ANR, EPA received
comments presenting several opposing
arguments.1 Commenters questioned
whether EPA’s section 110(k)(6) errorcorrection action was an appropriate
mechanism to remove the ANR from the
Ohio SIP. See footnote 1, supra. The
commenters asserted that EPA’s
approval of the ANR as part of the SIP
was not an error and that EPA’s use of
error correction authority to remove the
ANR from Ohio’s SIP was unlawful. Id.
Commenters further asserted that EPA
was required to adhere to the SIP
revision process to remove the ANR
from Ohio’s SIP, which would include
providing a demonstration pursuant to
section 193 of the CAA that no
backsliding would result from this
change. Id.
Commenters also asserted that EPA
had failed to consider the impact of
eliminating the only available pathway
for Ohio residents to enforce the ANR
on air quality and enforcement in Ohio.
Therefore, the commenters maintained,
the removal of the ANR from the SIP
prevented local governments and nongovernmental organizations, as well as
affected Ohio communities, from
directly enforcing 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 error correction rulemaking, on
the nuisance provision for Federal
enforcement citizen suits under the
CAA, and that the continued availability
of such citizen suits was important for
achieving environmental justice in the
context of highly localized emissions in
low-income areas and communities of
color. See footnote 1, supra.
C. The Sixth Circuit Opinion
In its decision remanding EPA’s
removal of the ANR back to the Agency
for further review, the Sixth Circuit
cited several cases in which parties
authorized to enforce Ohio’s SIP
provisions could and did bring
enforcement actions for violations of the
1 The public comments are found in the
rulemaking docket for EPA’s proposed and final
action removing the ANR from the Ohio SIP. Docket
ID: EPA–R05–OAR–2020–0055, available at https://
www.regulations.gov/docket/EPA-R05-OAR-20200055.
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ANR (prior to EPA removing the rule
from Ohio’s SIP). E.g., Fisher v. PermaFix of Dayton, Inc. Np. 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). Slip op. at 5.
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).
Slip op. at 5. For support, the Court
cited public comments opposing the
proposed rulemaking that argued 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.’’ Slip op. at 7.
In addition, during the litigation in
the Sixth Circuit, the state of Ohio
submitted a letter to the Court 2
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 for violating
the ANR and lead NAAQS based on
excess lead emissions. See State of Ohio
v. Republic Steel, Case No.
2021VC00949 (Stark County, Ohio July
2, 2021). 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. Slip op. at
6.
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D. Legal Authority for Proposed Action
Section 110(k)(6) of the CAA
authorizes EPA to revise a state’s SIP
when it ‘‘determines that [its] action
approving, disapproving, or
promulgating any plan or plan revision
(or part thereof) . . . was in error.’’
Once EPA has made the 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,
1286 (11th Cir. 2013). Section 110(k)(6)
of the CAA has been interpreted by
courts 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.’’ Miss. Comm’n on Envtl.
2 See ‘‘Notice of additional information in Sierra
Club, et al. v. United States Environmental
Protection Agency, No. 21–3057,’’ Sierra Club, et al.
v. EPA et al., No. 21–3057 (6th Cir. Oct. 18, 2022).
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Quality v. EPA, 790 F.3d 138, 150 (D.C.
Cir. 2015). EPA can take action under
section 110(k)(6) to correct an error only
if the error existed at the time the SIP
was originally approved. See Texas v.
EPA, 726 F.3d 180, 204 (D.C. Cir. 2013)
(Kavanaugh, J., dissenting).
Additionally, 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). 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.’’). The CAA
complements EPA’s inherent authority
to reconsider prior rulemakings by
providing the Agency with broad
authority to prescribe regulations as
necessary. 42 U.S.C. 7601(a); see also
Emission Guidelines and Compliance
Times for Municipal Solid Waste
Landfills, 81 FR 59276, 59277–59278
(August 29, 2016).
Section 110(a)(1) of the CAA imposes
an obligation upon states to submit SIPs
that provide for the ‘‘implementation,
maintenance, and enforcement’’ of a
new or revised NAAQS within three
years following the promulgation of that
NAAQS. 42 U.S.C. 7410(a)(1). The
importance of enforcement in the
statutory scheme is evident in section
110(a)(2), as the list of required SIP
elements under 110(a)(2)(A) includes
enforceable emission limitations and
other control measures, means, or
techniques as may be necessary or
appropriate to meet the applicable
requirements of the CAA. Section
110(a)(2) ‘‘sets only a minimum
standard that the States may exceed in
their discretion.’’ Union Elec. Co. v.
EPA, 427 U.S. 246, 260 (1976). The CAA
provides that the Administrator must
approve the proposed plan if it has been
adopted after public notice and hearing
and if it meets the specified criteria in
section 110(a)(2). See also Train v. Nat.
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Res. Def. Council, Inc., 421 U.S. 60, 79
(1975). In addition, section 116 of the
CAA provides that States may adopt
emission standards that are stricter than
the NAAQS. See Union Electric at 263–
64.
Additionally, section 113 of the CAA
establishes EPA’s Federal authority to
enforce SIP provisions, and section 304
of the CAA provides for citizen
enforcement authority of the same. 42
U.S.C. 7413, 7604. Thus, the CAA
contemplates multiple mechanisms for
enforcement of SIP provisions, and
taken together with the requirement
under section 110(a)(1) that SIPs
provide for the ‘‘implementation,
maintenance, and enforcement’’ of the
NAAQS, 42 U.S.C. 7410(a)(1), a state
provision that provides for enforcement
of the NAAQS is appropriate for
inclusion in a SIP.
II. Reevaluation in Response to
Remand
EPA’s November 2020 removal of the
ANR from Ohio’s SIP was based on a
determination that the ANR’s original
inclusion in the Ohio SIP was erroneous
because the ANR had no nexus to the
implementation, maintenance, or
enforcement of the NAAQS. See 85 FR
73636–73638. EPA has reviewed its
November 2020 removal of the ANR
from the Ohio SIP and reconsidered
whether its determination that the ANR
was approved in error was legally
sufficient. Based on its reconsideration,
EPA is proposing to conclude that its
original 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. As such, EPA is
proposing to use both its error
correction authority under CAA section
110(k)(6), and inherent reconsideration
authority, to reverse its removal of the
ANR and reinstate the provision back
into the Ohio SIP.
A. Enforcement of the ANR
In response to the remand, EPA has
carefully considered the cases cited by
the Sixth Circuit indicating that the
ANR had been used as a tool to enforce
the NAAQS, many of which were also
submitted to EPA during the public
comment period for the proposed action
to remove the ANR. Upon further
review, EPA is proposing to determine
that its November 2020 action failed to
adequately consider the role the ANR
plays in the enforcement of the NAAQS
in Ohio.
During the public comment period for
the proposed action removing the ANR,
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EPA failed to adequately consider
comments about citizen suits relying on
the ANR as a tool to enforce the
NAAQS. See footnote 1, supra. See also
Fisher v. Perma-Fix of Dayton, Inc., No.
3:04–CV–418, 2006 WL 212076 (S.D.
Ohio Jan. 27, 2006) and City of
Ashtabula v. Norfolk S. Corp., 633 F.
Supp. 2d 519, 528–29 (N.D. Ohio 2009)
(holding that the ANR is an enforceable
emissions limitation within the meaning
of the CAA); Sampson, et al. v. SunCoke
Energy et al., 1:17–cv–00658–MRB (S.D.
Ohio) (citizen suit alleging violations of
the ANR at a coke production facility
and which was pending at the time of
EPA’s removal of the ANR). EPA also
received public comments opposing the
proposed rulemaking that argued 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.’’ Slip op. at 7. See
also 85 FR 73636, 73637–73639
(November 19, 2020).
Further, the state of Ohio
acknowledged relying on the ANR as
recently as July 2021, when it brought
a lawsuit against an iron and steel
manufacturing facility for violating the
ANR based on lead emissions exceeding
the NAAQS. See State of Ohio v.
Republic Steel, Case No. 2021VC00949
(Stark County, Ohio July 2, 2021). See
also footnote 2, supra. While this
information came to light after EPA had
taken final action to remove the ANR
from Ohio’s SIP, and thus EPA could
not have considered it at the time of its
original action to remove the ANR, it
supports EPA’s current analysis that the
Ohio ANR is indeed used to enforce the
NAAQS.
The types of air pollution identified
in the ANR—smoke, ashes, dust, dirt,
grime, acids, fumes, gases, and vapors—
could have a nexus to a number of
NAAQS, including particulate matter,
sulfur dioxide, and lead.3 The CAA
requires that SIPs provide for the
implementation, maintenance, and
enforcement of the NAAQS. See 42
U.S.C. 7410(a)(1). In the original action
approving the ANR into the SIP, the
ANR had been adopted by the State after
public notice and hearing, and EPA had
determined that it met the specific
criteria in section 110(a)(2). Under
Union Electric, supra, EPA was required
to approve the ANR into the SIP—even
if such approval resulted in emission
standards that were stricter than those
3 Notably, in State of Ohio v. Republic Steel, Case
No. 2021VC00949 (Stark County, Ohio July 2,
2021), the State of Ohio sought to enforce the ANR
based on lead emissions exceeding the NAAQS. See
also footnote 2, supra.
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required to attain or maintain the
NAAQS.
The examples cited by the Sierra
Club, other commenters, and the Sixth
Circuit highlight the importance of the
ANR as a regulatory tool for achieving,
maintaining, and enforcing the NAAQS
consistent with section 110(a)(1) of the
CAA. EPA’s removal of the ANR from
the Ohio SIP failed to consider the
evidence in the record of the ANR’s role
in citizen suit enforcement of the
NAAQS under the CAA. EPA is
proposing to conclude that EPA’s prior
determination that inclusion of the ANR
in the Ohio SIP was ‘‘erroneous’’ was
flawed, as the evidence in the record
before the Agency at the time that
decision was made indicated that the
ANR has a clear nexus to the
enforcement of the NAAQS under
section 110(a)(1) of the CAA. As such,
EPA is proposing to use its error
correction authority under CAA section
110(k)(6) to reverse its November 2020
rule and reinstate the ANR into the Ohio
SIP.
B. Section 193 ‘‘Anti-Backsliding’’
Analysis
On remand, EPA has also evaluated
whether it should have performed an
‘‘anti-backsliding’’ analysis under
section 193 of the CAA, 42 U.S.C. 7515,
as part of the Agency’s November 2020
action removing the ANR from the Ohio
SIP. Upon further review, EPA is
proposing to determine that its original
action was deficient because it should
have performed an anti-backsliding
analysis in taking this final action.
Section 193 provides that, for SIP
control requirements in effect before
November 15, 1990, any ‘‘modification’’
thereof must ‘‘insure[ ] equivalent or
greater emissions reductions’’ of the air
pollutant for which the area is in
nonattainment. 42 U.S.C. 7515. As a
general matter, this ‘‘anti-backsliding’’
analysis is required when modifying SIP
control requirements, whether through
section 110(k)(6) or otherwise, if the
modification impacts pre-1990 control
requirements in a nonattainment area.
Because the ANR was a pre-1990 SIP
control requirement that was in effect in
Ohio’s nonattainment areas, EPA is
proposing to determine that it was
required to conduct an anti-backsliding
analysis pursuant to section 193 when
it removed the ANR in November 2020.
Because EPA failed to conduct the
required analysis under section 193, the
Agency’s November 2020 removal of the
ANR was deficient.
Through this action, EPA is proposing
to determine its November 2020
removal of the ANR was in error and
reinstate the ANR into the Ohio SIP.
PO 00000
Frm 00019
Fmt 4702
Sfmt 4702
13307
Section 193 does not apply to this
proposed action because the antibacksliding analysis is required only
when there is modification of a ‘‘control
requirement in effect . . . before
November 15, 1990, in any area which
is a nonattainment area for any air
pollutant.’’ See section 193 of the CAA,
42 U.S.C. 7515. EPA is not proposing to
modify a control requirement currently
in effect in Ohio’s SIP. Rather, EPA is
proposing to determine its prior removal
of the ANR was in error, and to correct
that error by reinstating the ANR into
Ohio’s SIP.
C. EPA’s Use of Section 110(k)(6)
On remand, EPA has also evaluated
whether the section 110(k)(6) errorcorrection mechanism was an
appropriate vehicle for removing the
ANR from Ohio’s SIP. As discussed
throughout this proposal, EPA has
reevaluated its removal of the ANR and
is proposing 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. Notwithstanding the deficiencies in
EPA’s November 2020 action, as a
general legal matter, section 110(k)(6)
can be an appropriate mechanism to
revise a prior action on a SIP revision
that was in error. As the Sixth Circuit
noted in its order remanding this matter
back to EPA, ‘‘[i]f EPA determines that
its prior approval of a SIP was in error,
the EPA can revise the plan using the
Clean Air Act’s error-correction
provision, 42 U.S.C. 7410(k)(6).’’ Slip
op. at 1. ‘‘The claimed error can be used
to revise a SIP only if the error existed
at the time of the SIP’s prior approval.’’
Slip op. at 4, citing Ala. Env’t Council
v. EPA, 711 F.3d 1277, 1287–88 (11th
Cir. 2013); Texas v. EPA, 726 F.3d 180,
204 (D.C. Cir. 2013). While section
110(k)(6) can be an appropriate vehicle
to revise a prior action on a SIP
provision, EPA’s November 2020 use of
section 110(k)(6) was deficient on a
number of bases.
EPA’s November 2020 removal of the
ANR from the Ohio SIP was based on
a determination that the ANR’s
inclusion in the Ohio SIP was erroneous
because it had no nexus to the
implementation, maintenance, or
enforcement of the NAAQS, and that
Ohio did not rely on the ANR to meet
these statutorily prescribed
requirements. See 85 FR 73636–73638.
As discussed above, EPA failed to
consider the ANR’s role as a NAAQS
enforcement tool under the CAA.
Consequently, we are now proposing to
determine that the ANR has a clear
nexus to the enforcement of the NAAQS
under section 110(a)(1) of the CAA, and
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Federal Register / Vol. 89, No. 36 / Thursday, February 22, 2024 / Proposed Rules
that EPA’s prior determination that
inclusion of the ANR in the Ohio SIP
was ‘‘erroneous’’ was flawed. As
discussed above, EPA failed to consider
public comments demonstrating the
ANR’s use as a NAAQS enforcement
tool. Further, EPA failed to conduct an
‘‘anti-backsliding’’ analysis pursuant to
section 193 of the CAA. As such, EPA
is proposing that its November 2020
removal of the ANR using section
110(k)(6) was improper.
Because the ANR’s inclusion in the
Ohio SIP was not erroneous, there was
no ‘‘error’’ to correct. In other words,
EPA erred in using section 110(k)(6) to
remove the ANR because the ANR was
appropriate for inclusion in the Ohio
SIP at the time the SIP was originally
approved. See Texas v. EPA, 726 F,3d
180, 204 (D.C. Cir. 2013) (Kavanaugh, J.
dissenting). EPA is now proposing to
correct its erroneous November 2020
action removing the ANR from the Ohio
SIP, and to therefore reinstate the ANR
into the Ohio SIP.
III. What action is EPA taking?
EPA is proposing to determine that its
prior action removing OAC 3745–15–07
from the Ohio SIP was deficient.
Consequently, EPA is proposing to
reverse its removal and reinstate OAC
3745–15–07 into the Ohio SIP,
recodifying this reinstatement by
revising the appropriate paragraph
under 40 CFR part 52, subpart KK,
52.1870 (Identification of Plan).
IV. Incorporation by Reference
lotter on DSK11XQN23PROD with PROPOSALS1
In this action, EPA is proposing to
include final EPA rule regulatory text
that includes incorporation by
reference. In accordance with
requirements of 1 CFR 51.5, EPA is
proposing to incorporate by reference
Ohio rule OAC 3745–15–07, as effective
on May 17, 1982, discussed in section
II of this preamble. EPA has made, and
will continue to make, these documents
generally available through
www.regulations.gov and at the EPA
Region 5 Office (please contact the
person identified in the FOR FURTHER
INFORMATION CONTACT section of this
preamble for more information).
VerDate Sep<11>2014
16:47 Feb 21, 2024
Jkt 262001
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
PO 00000
Frm 00020
Fmt 4702
Sfmt 9990
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 minority populations
and low-income populations to the
greatest extent practicable and
permitted by law. EPA defines
environmental justice (EJ) as ‘‘the fair
treatment and meaningful involvement
of all people regardless of race, color,
national origin, or income with respect
to the development, implementation,
and enforcement of environmental laws,
regulations, and policies.’’ EPA further
defines the term fair treatment to mean
that ‘‘no group of people should bear a
disproportionate burden of
environmental harms and risks,
including those resulting from the
negative environmental consequences of
industrial, governmental, and
commercial operations or programs and
policies.’’
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 of
achieving environmental justice for
people of color, low-income
populations, and Indigenous peoples.
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: February 14, 2024.
Debra Shore,
Regional Administrator, Region 5.
[FR Doc. 2024–03555 Filed 2–21–24; 8:45 am]
BILLING CODE 6560–50–P
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Agencies
[Federal Register Volume 89, Number 36 (Thursday, February 22, 2024)]
[Proposed Rules]
[Pages 13304-13308]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-03555]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2020-0055; FRL-11687-01-R5]
Air Plan Approval; Ohio; Withdrawal of Technical Amendment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
correct the November 19, 2020, removal of 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 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, as directed by the
Court, EPA is proposing 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.
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
[email protected]. For comments submitted at Regulations.gov, follow
the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from Regulations.gov. For either
manner of submission, EPA may publish any comment received to its
public docket. Do not submit electronically any
[[Page 13305]]
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e. on the web, cloud, or other file sharing
system). For additional submission methods, please contact the person
identified in the FOR FURTHER INFORMATION CONTACT section. For the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit https://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Christos Panos, Attainment Planning
and Maintenance Section, Air Programs Branch (AR-18J), Environmental
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago,
Illinois 60604, (312) 353-8328, [email protected]. The EPA Region
5 office is open from 8:30 a.m. to 4:30 p.m., Monday through Friday,
excluding Federal holidays and facility closures due to COVID-19.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
I. Background
A. Procedural History
Until EPA's November 2020 removal action, a version of the ANR had
been part of the Ohio SIP since 1974. EPA approved Ohio rule AP-2-07,
``Air pollution nuisances prohibited,'' into the Ohio SIP on April 15,
1974 (39 FR 13542). Subsequently, Ohio made minor changes to the rule
and submitted the amended rule, renumbered as Ohio Administrative Code
(OAC) 3745-15-07, as a SIP revision. EPA approved the amended rule into
the SIP on August 13, 1984 (49 FR 32182). OAC 3745-15-07 prohibits the
``emission or escape into the open air from any source or sources
whatsoever, of smoke, ashes, dust, dirt, grime, acids, fumes, gases,
vapors, odors, 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.''
In a proposed rule published on March 23, 2020 (85 FR 16309), EPA
proposed to conclude that it had erred in originally approving the ANR
into Ohio's SIP. In its justification, EPA noted that it had no
information indicating that Ohio had relied on, or ever intended to
rely on, the ANR for attainment or maintenance of any National Ambient
Air Quality Standards (NAAQS). Further, in response to EPA's inquiry,
Ohio informed EPA that it had not relied on the ANR for the purposes of
planning, nonattainment designations, redesignation requests,
maintenance plans, or determination of nonattainment areas or their
boundaries under the Clean Air Act (CAA). Therefore, in the final rule
published on November 19, 2020 (85 FR 73636), EPA concluded it had
erred by including the ANR in Ohio's SIP and removed the ANR using the
error-correction mechanism under the authority of section 110(k)(6) of
the CAA, 42 U.S.C. 7410(k)(6).
On January 19, 2021, environmental groups and private citizens
petitioned the Sixth Circuit for review of EPA's November 19, 2020,
removal of the ANR (Sierra Club v. EPA, No. 21-3057). In briefing this
matter before the Court, EPA argued that Petitioners did not have
standing to bring this challenge. See Brief for Respondents at 1,
Sierra Club v. EPA, No. 21-3057 (6th Cir. Apr. 25, 2022). However, in
the event that the Court found Petitioners did have standing, EPA
requested a voluntary remand of the final rule, which was granted by
the Court on February 10, 2023. EPA represented to the Court that such
a remand would allow the Agency to consider: (1) whether the section
110(k)(6) error-correction mechanism was the most appropriate vehicle
for removing the ANR from Ohio's SIP; and (2) whether EPA should have
considered performing an ``anti-backsliding'' analysis under section
193 of the CAA, 42 U.S.C. 7515, concerning the removal of the nuisance
rule from Ohio's SIP. Id. at 23-24. In a declaration filed in the Sixth
Circuit, EPA represented that, in the course of this reevaluation, it
could supplement the administrative record with additional information
and analysis, take and consider additional public comment, and provide
additional explanation of its assessment of the challenged aspects of
the final rule. See ``Declaration in Support of Request for Voluntary
Remand'' at para. 9, Brief for Respondents, Sierra Club v. EPA, No. 21-
3057 (6th Cir. Apr. 25, 2022). EPA stated that, upon remand, it could
also evaluate whether any aspects of the ANR could be included in the
SIP if they met applicable requirements for the implementation,
maintenance, and enforcement of the NAAQS. Id. EPA committed to
completing its reevaluation within 12 months. Id. at para. 10.
B. Public Comments on EPA's Proposal To Remove the ANR
During the public comment period for the March 23, 2020, proposed
rule removing the ANR, EPA received comments presenting several
opposing arguments.\1\ Commenters questioned whether EPA's section
110(k)(6) error-correction action was an appropriate mechanism to
remove the ANR from the Ohio SIP. See footnote 1, supra. The commenters
asserted that EPA's approval of the ANR as part of the SIP was not an
error and that EPA's use of error correction authority to remove the
ANR from Ohio's SIP was unlawful. Id. Commenters further asserted that
EPA was required to adhere to the SIP revision process to remove the
ANR from Ohio's SIP, which would include providing a demonstration
pursuant to section 193 of the CAA that no backsliding would result
from this change. Id.
---------------------------------------------------------------------------
\1\ The public comments are found in the rulemaking docket for
EPA's proposed and final action removing the ANR from the Ohio SIP.
Docket ID: EPA-R05-OAR-2020-0055, available at https://www.regulations.gov/docket/EPA-R05-OAR-2020-0055.
---------------------------------------------------------------------------
Commenters also asserted that EPA had failed to consider the impact
of eliminating the only available pathway for Ohio residents to enforce
the ANR on air quality and enforcement in Ohio. Therefore, the
commenters maintained, the removal of the ANR from the SIP prevented
local governments and non-governmental organizations, as well as
affected Ohio communities, from directly enforcing 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 error
correction rulemaking, on the nuisance provision for Federal
enforcement citizen suits under the CAA, and that the continued
availability of such citizen suits was important for achieving
environmental justice in the context of highly localized emissions in
low-income areas and communities of color. See footnote 1, supra.
C. The Sixth Circuit Opinion
In its decision remanding EPA's removal of the ANR back to the
Agency for further review, the Sixth Circuit cited several cases in
which parties authorized to enforce Ohio's SIP provisions could and did
bring enforcement actions for violations of the
[[Page 13306]]
ANR (prior to EPA removing the rule from Ohio's SIP). E.g., Fisher v.
Perma-Fix of Dayton, Inc. Np. 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). Slip op. at 5. 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). Slip op. at 5. For support,
the Court cited public comments opposing the proposed rulemaking that
argued 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.'' Slip op. at 7.
In addition, during the litigation in the Sixth Circuit, the state
of Ohio submitted a letter to the Court \2\ 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 for violating the ANR
and lead NAAQS based on excess lead emissions. See State of Ohio v.
Republic Steel, Case No. 2021VC00949 (Stark County, Ohio July 2, 2021).
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. Slip op. at 6.
---------------------------------------------------------------------------
\2\ See ``Notice of additional information in Sierra Club, et
al. v. United States Environmental Protection Agency, No. 21-3057,''
Sierra Club, et al. v. EPA et al., No. 21-3057 (6th Cir. Oct. 18,
2022).
---------------------------------------------------------------------------
D. Legal Authority for Proposed Action
Section 110(k)(6) of the CAA authorizes EPA to revise a state's SIP
when it ``determines that [its] action approving, disapproving, or
promulgating any plan or plan revision (or part thereof) . . . was in
error.'' Once EPA has made the 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, 1286 (11th
Cir. 2013). Section 110(k)(6) of the CAA has been interpreted by courts
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.'' Miss.
Comm'n on Envtl. Quality v. EPA, 790 F.3d 138, 150 (D.C. Cir. 2015).
EPA can take action under section 110(k)(6) to correct an error only if
the error existed at the time the SIP was originally approved. See
Texas v. EPA, 726 F.3d 180, 204 (D.C. Cir. 2013) (Kavanaugh, J.,
dissenting).
Additionally, 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). 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.''). The CAA complements EPA's inherent authority to
reconsider prior rulemakings by providing the Agency with broad
authority to prescribe regulations as necessary. 42 U.S.C. 7601(a); see
also Emission Guidelines and Compliance Times for Municipal Solid Waste
Landfills, 81 FR 59276, 59277-59278 (August 29, 2016).
Section 110(a)(1) of the CAA imposes an obligation upon states to
submit SIPs that provide for the ``implementation, maintenance, and
enforcement'' of a new or revised NAAQS within three years following
the promulgation of that NAAQS. 42 U.S.C. 7410(a)(1). The importance of
enforcement in the statutory scheme is evident in section 110(a)(2), as
the list of required SIP elements under 110(a)(2)(A) includes
enforceable emission limitations and other control measures, means, or
techniques as may be necessary or appropriate to meet the applicable
requirements of the CAA. Section 110(a)(2) ``sets only a minimum
standard that the States may exceed in their discretion.'' Union Elec.
Co. v. EPA, 427 U.S. 246, 260 (1976). The CAA provides that the
Administrator must approve the proposed plan if it has been adopted
after public notice and hearing and if it meets the specified criteria
in section 110(a)(2). See also Train v. Nat. Res. Def. Council, Inc.,
421 U.S. 60, 79 (1975). In addition, section 116 of the CAA provides
that States may adopt emission standards that are stricter than the
NAAQS. See Union Electric at 263-64.
Additionally, section 113 of the CAA establishes EPA's Federal
authority to enforce SIP provisions, and section 304 of the CAA
provides for citizen enforcement authority of the same. 42 U.S.C. 7413,
7604. Thus, the CAA contemplates multiple mechanisms for enforcement of
SIP provisions, and taken together with the requirement under section
110(a)(1) that SIPs provide for the ``implementation, maintenance, and
enforcement'' of the NAAQS, 42 U.S.C. 7410(a)(1), a state provision
that provides for enforcement of the NAAQS is appropriate for inclusion
in a SIP.
II. Reevaluation in Response to Remand
EPA's November 2020 removal of the ANR from Ohio's SIP was based on
a determination that the ANR's original inclusion in the Ohio SIP was
erroneous because the ANR had no nexus to the implementation,
maintenance, or enforcement of the NAAQS. See 85 FR 73636-73638. EPA
has reviewed its November 2020 removal of the ANR from the Ohio SIP and
reconsidered whether its determination that the ANR was approved in
error was legally sufficient. Based on its reconsideration, EPA is
proposing to conclude that its original determination was deficient for
two reasons: (1) because EPA failed to adequately consider the ANR's
use in enforcement of the NAAQS, and (2) because EPA failed to conduct
an anti-backsliding analysis pursuant to section 193 of the CAA. As
such, EPA is proposing to use both its error correction authority under
CAA section 110(k)(6), and inherent reconsideration authority, to
reverse its removal of the ANR and reinstate the provision back into
the Ohio SIP.
A. Enforcement of the ANR
In response to the remand, EPA has carefully considered the cases
cited by the Sixth Circuit indicating that the ANR had been used as a
tool to enforce the NAAQS, many of which were also submitted to EPA
during the public comment period for the proposed action to remove the
ANR. Upon further review, EPA is proposing to determine that its
November 2020 action failed to adequately consider the role the ANR
plays in the enforcement of the NAAQS in Ohio.
During the public comment period for the proposed action removing
the ANR,
[[Page 13307]]
EPA failed to adequately consider comments about citizen suits relying
on the ANR as a tool to enforce the NAAQS. See footnote 1, supra. See
also Fisher v. Perma-Fix of Dayton, Inc., No. 3:04-CV-418, 2006 WL
212076 (S.D. Ohio Jan. 27, 2006) and City of Ashtabula v. Norfolk S.
Corp., 633 F. Supp. 2d 519, 528-29 (N.D. Ohio 2009) (holding that the
ANR is an enforceable emissions limitation within the meaning of the
CAA); Sampson, et al. v. SunCoke Energy et al., 1:17-cv-00658-MRB (S.D.
Ohio) (citizen suit alleging violations of the ANR at a coke production
facility and which was pending at the time of EPA's removal of the
ANR). EPA also received public comments opposing the proposed
rulemaking that argued 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.'' Slip op.
at 7. See also 85 FR 73636, 73637-73639 (November 19, 2020).
Further, the state of Ohio acknowledged relying on the ANR as
recently as July 2021, when it brought a lawsuit against an iron and
steel manufacturing facility for violating the ANR based on lead
emissions exceeding the NAAQS. See State of Ohio v. Republic Steel,
Case No. 2021VC00949 (Stark County, Ohio July 2, 2021). See also
footnote 2, supra. While this information came to light after EPA had
taken final action to remove the ANR from Ohio's SIP, and thus EPA
could not have considered it at the time of its original action to
remove the ANR, it supports EPA's current analysis that the Ohio ANR is
indeed used to enforce the NAAQS.
The types of air pollution identified in the ANR--smoke, ashes,
dust, dirt, grime, acids, fumes, gases, and vapors--could have a nexus
to a number of NAAQS, including particulate matter, sulfur dioxide, and
lead.\3\ The CAA requires that SIPs provide for the implementation,
maintenance, and enforcement of the NAAQS. See 42 U.S.C. 7410(a)(1). In
the original action approving the ANR into the SIP, the ANR had been
adopted by the State after public notice and hearing, and EPA had
determined that it met the specific criteria in section 110(a)(2).
Under Union Electric, supra, EPA was required to approve the ANR into
the SIP--even if such approval resulted in emission standards that were
stricter than those required to attain or maintain the NAAQS.
---------------------------------------------------------------------------
\3\ Notably, in State of Ohio v. Republic Steel, Case No.
2021VC00949 (Stark County, Ohio July 2, 2021), the State of Ohio
sought to enforce the ANR based on lead emissions exceeding the
NAAQS. See also footnote 2, supra.
---------------------------------------------------------------------------
The examples cited by the Sierra Club, other commenters, and the
Sixth Circuit highlight the importance of the ANR as a regulatory tool
for achieving, maintaining, and enforcing the NAAQS consistent with
section 110(a)(1) of the CAA. EPA's removal of the ANR from the Ohio
SIP failed to consider the evidence in the record of the ANR's role in
citizen suit enforcement of the NAAQS under the CAA. EPA is proposing
to conclude that EPA's prior determination that inclusion of the ANR in
the Ohio SIP was ``erroneous'' was flawed, as the evidence in the
record before the Agency at the time that decision was made indicated
that the ANR has a clear nexus to the enforcement of the NAAQS under
section 110(a)(1) of the CAA. As such, EPA is proposing to use its
error correction authority under CAA section 110(k)(6) to reverse its
November 2020 rule and reinstate the ANR into the Ohio SIP.
B. Section 193 ``Anti-Backsliding'' Analysis
On remand, EPA has also evaluated whether it should have performed
an ``anti-backsliding'' analysis under section 193 of the CAA, 42
U.S.C. 7515, as part of the Agency's November 2020 action removing the
ANR from the Ohio SIP. Upon further review, EPA is proposing to
determine that its original action was deficient because it should have
performed an anti-backsliding analysis in taking this final action.
Section 193 provides that, for SIP control requirements in effect
before November 15, 1990, any ``modification'' thereof must ``insure[ ]
equivalent or greater emissions reductions'' of the air pollutant for
which the area is in nonattainment. 42 U.S.C. 7515. As a general
matter, this ``anti-backsliding'' analysis is required when modifying
SIP control requirements, whether through section 110(k)(6) or
otherwise, if the modification impacts pre-1990 control requirements in
a nonattainment area.
Because the ANR was a pre-1990 SIP control requirement that was in
effect in Ohio's nonattainment areas, EPA is proposing to determine
that it was required to conduct an anti-backsliding analysis pursuant
to section 193 when it removed the ANR in November 2020. Because EPA
failed to conduct the required analysis under section 193, the Agency's
November 2020 removal of the ANR was deficient.
Through this action, EPA is proposing to determine its November
2020 removal of the ANR was in error and reinstate the ANR into the
Ohio SIP. Section 193 does not apply to this proposed action because
the anti-backsliding analysis is required only when there is
modification of a ``control requirement in effect . . . before November
15, 1990, in any area which is a nonattainment area for any air
pollutant.'' See section 193 of the CAA, 42 U.S.C. 7515. EPA is not
proposing to modify a control requirement currently in effect in Ohio's
SIP. Rather, EPA is proposing to determine its prior removal of the ANR
was in error, and to correct that error by reinstating the ANR into
Ohio's SIP.
C. EPA's Use of Section 110(k)(6)
On remand, EPA has also evaluated whether the section 110(k)(6)
error-correction mechanism was an appropriate vehicle for removing the
ANR from Ohio's SIP. As discussed throughout this proposal, EPA has
reevaluated its removal of the ANR and is proposing 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. Notwithstanding the
deficiencies in EPA's November 2020 action, as a general legal matter,
section 110(k)(6) can be an appropriate mechanism to revise a prior
action on a SIP revision that was in error. As the Sixth Circuit noted
in its order remanding this matter back to EPA, ``[i]f EPA determines
that its prior approval of a SIP was in error, the EPA can revise the
plan using the Clean Air Act's error-correction provision, 42 U.S.C.
7410(k)(6).'' Slip op. at 1. ``The claimed error can be used to revise
a SIP only if the error existed at the time of the SIP's prior
approval.'' Slip op. at 4, citing Ala. Env't Council v. EPA, 711 F.3d
1277, 1287-88 (11th Cir. 2013); Texas v. EPA, 726 F.3d 180, 204 (D.C.
Cir. 2013). While section 110(k)(6) can be an appropriate vehicle to
revise a prior action on a SIP provision, EPA's November 2020 use of
section 110(k)(6) was deficient on a number of bases.
EPA's November 2020 removal of the ANR from the Ohio SIP was based
on a determination that the ANR's inclusion in the Ohio SIP was
erroneous because it had no nexus to the implementation, maintenance,
or enforcement of the NAAQS, and that Ohio did not rely on the ANR to
meet these statutorily prescribed requirements. See 85 FR 73636-73638.
As discussed above, EPA failed to consider the ANR's role as a NAAQS
enforcement tool under the CAA. Consequently, we are now proposing to
determine that the ANR has a clear nexus to the enforcement of the
NAAQS under section 110(a)(1) of the CAA, and
[[Page 13308]]
that EPA's prior determination that inclusion of the ANR in the Ohio
SIP was ``erroneous'' was flawed. As discussed above, EPA failed to
consider public comments demonstrating the ANR's use as a NAAQS
enforcement tool. Further, EPA failed to conduct an ``anti-
backsliding'' analysis pursuant to section 193 of the CAA. As such, EPA
is proposing that its November 2020 removal of the ANR using section
110(k)(6) was improper.
Because the ANR's inclusion in the Ohio SIP was not erroneous,
there was no ``error'' to correct. In other words, EPA erred in using
section 110(k)(6) to remove the ANR because the ANR was appropriate for
inclusion in the Ohio SIP at the time the SIP was originally approved.
See Texas v. EPA, 726 F,3d 180, 204 (D.C. Cir. 2013) (Kavanaugh, J.
dissenting). EPA is now proposing to correct its erroneous November
2020 action removing the ANR from the Ohio SIP, and to therefore
reinstate the ANR into the Ohio SIP.
III. What action is EPA taking?
EPA is proposing to determine that its prior action removing OAC
3745-15-07 from the Ohio SIP was deficient. Consequently, EPA is
proposing to reverse its removal and reinstate OAC 3745-15-07 into the
Ohio SIP, 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 proposing to include final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference Ohio rule OAC 3745-15-07, as effective on May 17, 1982,
discussed in section II of this preamble. EPA has made, and will
continue to make, these documents generally available through
www.regulations.gov and at the EPA Region 5 Office (please contact the
person identified in the FOR FURTHER INFORMATION CONTACT section of
this preamble for more information).
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 minority populations and low-income
populations to the greatest extent practicable and permitted by law.
EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' EPA further defines the term fair treatment to mean that
``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
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 of achieving environmental justice for people of color,
low-income populations, and Indigenous peoples.
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: February 14, 2024.
Debra Shore,
Regional Administrator, Region 5.
[FR Doc. 2024-03555 Filed 2-21-24; 8:45 am]
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