Proposed Rule2024-03555
Air Plan Approval; Ohio; Withdrawal of Technical Amendment
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 22, 2024
Issuing agencies
Environmental Protection Agency
Abstract
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.
Full Text
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<title>Federal Register, Volume 89 Issue 36 (Thursday, February 22, 2024)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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.
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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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or via email to
<a href="/cdn-cgi/l/email-protection#60011212014e1301120108200510014e070f16"><span class="__cf_email__" data-cfemail="fb9a89899ad5889a899a93bb9e8b9ad59c948d">[email protected]</span></a>. For comments submitted at <a href="http://Regulations.gov">Regulations.gov</a>, follow
the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from <a href="http://Regulations.gov">Regulations.gov</a>. 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 <a href="https://www2.epa.gov/dockets/commenting-epa-dockets">https://www2.epa.gov/dockets/commenting-epa-dockets</a>.
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, <a href="/cdn-cgi/l/email-protection#cabaaba4a5b9e4a9a2b8a3b9bea5b98aafbaabe4ada5bc"><span class="__cf_email__" data-cfemail="deaebfb0b1adf0bdb6acb7adaab1ad9ebbaebff0b9b1a8">[email protected]</span></a>. 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.
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\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 <a href="https://www.regulations.gov/docket/EPA-R05-OAR-2020-0055">https://www.regulations.gov/docket/EPA-R05-OAR-2020-0055</a>.
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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.
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\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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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.
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\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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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
<a href="http://www.regulations.gov">www.regulations.gov</a> 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:
<bullet> 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);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> 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.);
<bullet> 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);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a state program;
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
<bullet> 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]
BILLING CODE 6560-50-P
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</html>Indexed from Federal Register on February 22, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.