Proposed Rule2026-10643
Air Plan Approval; Ohio; Removal of Air Nuisance Rule
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
May 28, 2026
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to act in accordance with Ohio EPA's November 14, 2025, request to remove the air pollution nuisance rule (ANR) from the Ohio State Implementation Plan (SIP). The EPA is proposing to find that the Ohio SIP contains adequate control requirements and enforcement measures to maintain air quality in the State without the ANR. This proposed action will not interfere with the National Ambient Air Quality Standards (NAAQS) and meets all applicable requirements under the Clean Air Act (CAA).
Full Text
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<title>Federal Register, Volume 91 Issue 102 (Thursday, May 28, 2026)</title>
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[Federal Register Volume 91, Number 102 (Thursday, May 28, 2026)]
[Proposed Rules]
[Pages 31688-31694]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-10643]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2025-1611; FRL-13365-01-R5]
Air Plan Approval; Ohio; Removal of Air Nuisance Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to act
in accordance with Ohio EPA's November 14, 2025, request to remove the
air pollution nuisance rule (ANR) from the Ohio State Implementation
Plan (SIP). The EPA is proposing to find that the Ohio SIP contains
adequate control requirements and enforcement measures to maintain air
quality in the State without the ANR. This proposed action will not
interfere with the National Ambient Air Quality Standards (NAAQS) and
meets all applicable requirements under the Clean Air Act (CAA).
DATES: Comments must be received on or before June 29, 2026.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2025-1611 at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or via email to
<a href="/cdn-cgi/l/email-protection#bddccfcfdc93cedccfdcd5fdd8cddc93dad2cb"><span class="__cf_email__" data-cfemail="ccadbebeade2bfadbeada48ca9bcade2aba3ba">[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 the docket. The EPA may
publish any comment received to its public docket. Do not submit to the
EPA's docket at <a href="https://www.regulations.gov">https://www.regulations.gov</a> any information you
consider to be Confidential Business Information (CBI), Proprietary
Business Information (PBI), 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. The 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, PBI, or multimedia submissions, and general
guidance on making effective comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
FOR FURTHER INFORMATION CONTACT: Mayesha Choudhury, Air and Radiation
Division (AR-18J), Environmental Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois 60604, telephone number: (312)
886-5909, email address: <a href="/cdn-cgi/l/email-protection#d2b1babda7b6baa7a0abfcbfb3abb7a1bab392b7a2b3fcb5bda4"><span class="__cf_email__" data-cfemail="beddd6d1cbdad6cbccc790d3dfc7dbcdd6dffedbcedf90d9d1c8">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
I. Background of Action
The Air Nuisance Rule has been part of the Ohio SIP since 1974
(Ohio rule AP-2-07). The EPA approved an amended rule, Ohio
Administrative Code (OAC) 3745-15-07, into the SIP on August 13, 1984
(49 FR 32182). The ANR 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, in
such manner or in health, safety or welfare of the public, or cause
unreasonable injury or damage to property.''
In a final rule published on November 19, 2020 (85 FR 73636), the
EPA removed the ANR from Ohio's SIP using the EPA's error correction
authority under section 110(k)(6) of the CAA. On January 19, 2021,
environmental groups and private citizens petitioned the United States
Court of Appeals for the Sixth Circuit for review of the EPA's removal
of the ANR.\1\ On February 10, 2023, the Sixth Circuit granted the
EPA's request for a voluntary remand to reevaluate its November 2020
removal of the ANR.\2\ On January 21, 2025 (90 FR 6811), the EPA
determined that its November 2020 removal of the ANR was deficient and
in error. Consequently, the EPA reversed the November 2020 removal and
reinstated the ANR into
[[Page 31689]]
Ohio's SIP. (January 2025 Reinstatement).
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\1\ Sierra Club v. EPA, 60 F.4th 1008 (6th Cir. 2023).
\2\ Id.
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In June 2025, the Governor of Ohio signed the State's 2026-2027
operating budget, which includes a provision requiring the Director of
the Ohio EPA to take necessary steps to remove any ``air nuisance
rules'' from the Ohio SIP. It also stipulates that, upon the effective
date of the legislation (which was October 1, 2025), the Ohio EPA
Director ``shall not include an air nuisance rule in the state
implementation plan or rely upon an air nuisance rule to implement or
enforce ambient air quality standards adopted pursuant to the federal
Clean Air Act.'' \3\ On November 14, 2025, Ohio EPA submitted a request
to the EPA to revise the Ohio SIP and remove the ANR.
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\3\ See State Operating Appropriations for FY 2026-27, Ohio H.B.
96, 136th General Assembly (2025) at 1448, available at <a href="https://search-prod.lis.state.oh.us/api/v2/general_assembly_136/legislation/hb96/07_EN/pdf/">https://search-prod.lis.state.oh.us/api/v2/general_assembly_136/legislation/hb96/07_EN/pdf/</a>.
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II. Legal Requirements
Title I of the CAA imposes requirements on the EPA's evaluation of
a State's SIP revision request, including analyzing the requirements a
State may decide to include in its SIP, and submit to the EPA for
approval, to achieve or maintain the NAAQS. In evaluating whether a SIP
revision would interfere with attainment or maintenance of the NAAQS,
the EPA considers whether the SIP revision will allow for an increase
in emissions as compared to what is allowed under the existing SIP
condition(s), also known as an anti-backsliding analysis. These
requirements are found in two sections of the CAA. Section 110(l) of
the CAA states that the EPA shall not approve a SIP revision if it
would interfere with any applicable requirement concerning attainment
and reasonable further progress towards attainment of the NAAQS, or any
other applicable requirement of the CAA. Section 193 of the CAA, also
known as the General Savings Clause, provides, in relevant part, that
``no control requirement in effect, or required to be adopted by an
order, settlement agreement, or plan in effect before November 15,
1990, in any area which is a nonattainment area for any air pollutant
may be modified after November 15, 1990, in any manner unless the
modification insures equivalent or greater emission reductions of such
air pollutant.''
III. Summary of Ohio EPA's Submittal
To satisfy requirements under sections 110(l) and 193 of the CAA,
Ohio submitted an anti-backsliding analysis to demonstrate that removal
of the ANR from the Ohio SIP would not result in an increase of
potential criteria pollutant emissions, contribute to exceedances or
violations of the NAAQS, or interfere with other applicable
requirements of the CAA.
A. Ohio EPA's Section 110(l) Demonstration
Ohio's anti-backsliding analysis states that the ANR is not ``an
element of `a program to provide for the enforcement of the measures'
adopted pursuant to Sec. 7410(a)(2)(a), as required by 42 U.S.C.
7410(a)(2)(c).'' In other words, Ohio's position is that the ANR is
``not an enforceable emission limitation or other control measure,
means, or technique'' and that ``it does not `enforce' the NAAQS.'' The
State instead argues that it has developed additional requirements in
its SIP since 1974 to achieve and maintain the NAAQS, as the purpose of
these State plans is to implement, maintain, and enforce the Federal
standards set for the criteria pollutants. The State, in essence,
explains that it has targeted mechanisms in the SIP to maintain and
achieve the NAAQS besides the ANR.
Ohio's anti-backsliding analysis goes on to provide that the Ohio
SIP contains control measures relevant to each NAAQS in the SIP to
demonstrate how the State controls emissions through federally-approved
control strategies, included in Table 1 of this preamble. The State
also explains that the SIP includes a program to provide for the
enforcement of the referenced control measures, and satisfies
compliance requirements set by the CAA, ``which makes any violation of
Ohio's air statutes and regulations subject to enforcement in Ohio
courts--regardless of whether they appear in Ohio's SIP'' through Ohio
Revised Code (ORC) section 3704.06.
Table 1--Ohio's SIP-Approved Emissions Control Measures and Strategies
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Pollutant(s) Regulations in Ohio administrative code
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Ozone and Carbon Monoxide.... Chapter 3745-26: I/M Program Rules and
Regulations.
Chapter 3745-14: NOX Budget Program.
Chapter 3745-110: Nitrogen Oxides-
Reasonably.
Available Control Technology.
Chapter 3745-112: Volatile Organic
Compound Limits in Consumer Products.
Chapter 3745-21: Carbon Monoxide,
Photochemically Reactive Materials,
Hydrocarbons, and Related Materials
Standards.
Particulate Matter (PM10 and Chapter 3745-17: Particulate Matter
PM2.5). Standards.
Sulfur Dioxide............... Chapter 3745-18: Sulfur Dioxide
Regulations.
Nitrogen Dioxide............. Chapter 3745-23: Nitrogen Oxide
Standards.
Chapter 3745-110: Nitrogen Oxides,
Reasonably Available Control Technology.
Lead......................... Addressed through individual SIP-approved
permit requirements or Director's Final
Findings and Orders.
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Similarly, Ohio's permitting programs under the New Source Review
(NSR) and major source Prevention of Significant Deterioration (PSD)
rules contain requirements that ensure that the construction and
modification of stationary sources do not cause or contribute to a
violation of the criteria pollutants NAAQS.\4\ Ohio's program requires
new or modified sources to apply Best Available Technology (applicable
to minor sources), or Best Available Control Technology (applicable to
major sources).
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\4\ Ohio's NSR provisions are contained in OAC Chapter 3745-31.
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Ohio also provides that, as required by the CAA and SIP-approved
measures, the Ohio EPA Director has the authority to enforce emission
limits and control measures found in the SIP.\5\ The State argues that
ORC 3704.03 contains requirements for the Ohio EPA Director to
implement and enforce Ohio's Federally approved permitting programs as
well.
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\5\ See ORC 3704.03(R)
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[[Page 31690]]
B. Ohio EPA's Section 193 Demonstration
As discussed in section II of this preamble, the General Savings
Clause of section 193 of the CAA applies to ``[e]ach regulation,
standard, rule, notice, order and guidance promulgated or issued by the
Administrator under this chapter, as in effect before November 15,
1990.'' As the ANR has resided in the Ohio SIP since 1974, Ohio EPA
provided an analysis to demonstrate that the removal of the ANR from
the SIP satisfies requirements under section 193. Ohio EPA explains
that since the ANR does not set emissions limitations, its removal will
not lead to an increase in emissions. The State refers to the control
requirements in the SIP that are relevant to each NAAQS pollutant
again, as explained in its analysis pursuant to section 110(l), to
further explain how the SIP contains requirements to control emissions
in nonattainment areas in absence of the ANR. Ohio EPA also provided a
list of 23 areas in the State that were designated as nonattainment for
a criteria pollutant prior to November of 1990, when the General
Savings Clause was codified into law.\6\ Ohio explains that all of
these areas have since been redesignated to maintenance areas, and that
there are no longer any nonattainment areas currently subject to the
Savings Clause. Table A in the Technical Support Document for this
preamble lists the 23 areas that the State included in its analysis.\7\
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\6\ Attachment C of Ohio EPA Submittal at 6-7.
\7\ The Technical Support Document is found in the rulemaking
docket for this action. Docket ID: EPA-R05-OAR-2025-1611.
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III. The EPA's Evaluation of Ohio EPA's Submittal
For the reasons described in greater detail below, the EPA is
proposing to find that the removal of the ANR from the Ohio SIP will
not interfere with attainment or reasonable further progress of the
NAAQS, or contribute to greater emissions of the criteria pollutants.
A. The EPA's Evaluation of Ohio EPA's 110(l) Demonstration
i. The EPA's Evaluation of State-Submitted Control Measures
CAA sections 110(a)(1)-(2) provide, in part, that each State shall
adopt a SIP that ``provides for implementation, maintenance, and
enforcement'' of the NAAQS and includes a program that enforces
``emission limitations and other control measures, means, or
techniques'' that are necessary to meet the applicable requirements of
the CAA. The United States Supreme Court affirmed that Congress ``left
to the States considerable latitude in determining specifically how the
[NAAQS] would be met. This discretion includes the continuing authority
to revise choices about the mix of emission limitations.'' Train v.
Nat. Res. Def. Council, Inc., 421 U.S. 60, 87 (1975). A year later, the
Court ruled that ``[e]ach State is given wide discretion in formulating
its [SIP], and the Act provides that the [EPA] `shall approve' the
proposed plan'' if it meets specific requirements under CAA section
110(a)(2). Union Elec. Co. v. EPA, 427 U.S. 246, 250 (1976).
The EPA has considered the control measures and enforcement methods
which the State argues will uphold and preserve air quality in absence
of the ANR.\8\ The adopted measures and regulations place limits on
emissions for each criteria pollutant (including by source category),
and require pollutant-specific monitoring methods and procedures for
recordkeeping and reporting of emissions to the State. These current
measures meet the requirements for SIPs to contain provisions to
enforce and implement the NAAQS under section 110(a) of the CAA.
Further, the EPA finds these presently SIP-approved control measures,
when complied with by relevant sources and properly enforced by the
State, are mechanisms the State can use to ensure that criteria
pollutant emissions do not cause interference with attainment or
maintenance of the NAAQS. The EPA also finds that the State has
demonstrated that implementation of these SIP-approved requirements
will control for emissions in the State without the ANR residing in the
SIP.
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\8\ The EPA's descriptions of the SIP-approved control measures,
submitted by the State, are included in Table B of the Technical
Support Document for this action.
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ii. The EPA's Evaluation of Ohio's Permitting Programs
The EPA also finds that Ohio's permitting programs contain
requirements necessary to control for potential emissions from sources
of pollution. Under the CAA, SIPs should include statutes and
regulations that provide for the enforcement of emissions limits and
control measures relevant to each NAAQS as identified pursuant to
section 110(a)(2)(A).\9\ SIPs should also contain requirements that
implement a PSD permit program that satisfies part C of title I of the
CAA, which is applicable to new major stationary sources and major
modifications of existing major stationary sources for pollutants for
which an area is designated as attainment or unclassifiable for the
NAAQS. Part D of title I of the CAA contains requirements for a State's
major nonattainment NSR (NNSR) program, which applies to new major
sources and major modifications of existing major sources for which an
area is designated as nonattainment. 42 U.S.C. 7501-7515.\10\
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\9\ Section 110(a)(2)(c) of the CAA contains requirements for
enforcement methods, the state-wide regulation of new or modified
minor sources of air pollution and minor modifications of major
sources, and preconstruction permitting of major sources and major
modifications in areas designated attainment or unclassifiable for a
particular NAAQS (also known as the major source Prevention of
Significant Deterioration program).
\10\ 40 CFR 51.66 houses the requirements that State PSD
programs must meet for SIP approval. 40 CFR 51.165 houses the
requirements for State nonattainment NSR programs.
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The EPA has approved Ohio's PSD, NNSR, and minor NSR programs as
part of its SIP. OAC 3745-31, 40 CFR 52.1870(c). As part of its
approval, the EPA determined that Ohio's preconstruction permitting
programs contain the necessary enforcement and control requirements
sufficient, by Federal standards, to control for, and enforce,
emissions of criteria pollutants.\11\ The enforcement measures
contained within the permitting requirements also stipulate that the
Ohio EPA will not issue a construction permit to a source if it cannot
demonstrate that the installation or modification will ``not prevent or
interfere with the attainment or maintenance of applicable [NAAQS]''
and ``not result in a violation of any applicable laws'' which
includes: ``[e]mission standards adopted by the Ohio [EPA],''
``[f]ederal standards of performance for new stationary sources adopted
by the [EPA] pursuant to Section 111 of the [CAA] and the regulations
promulgated thereunder;'' ``[r]equirements pertaining to installation
of major stationary sources or major modifications in attainment and
nonattainment areas as contained in rules 3745-31-10 to 3745-31-27 of
the [OAC];'' and ``[n]ational emission standards for hazardous air
pollutants adopted by the [EPA] pursuant to Section 112 of the [CAA]
and the regulations promulgated thereunder (including 40 CFR part 61
and 40 CFR part 63).'' OAC Chapter 3745-31-05(A).\12\ The EPA
understands this part
[[Page 31691]]
of Ohio's pre-construction permitting program to require sources to
comply with the EPA's pollution control standards under the New Source
Performance Standards (section 111 of the CAA), National Emission
Standards for Hazardous Pollutants (section 112 of the CAA), and
Maximum Available Control Technology standards (40 CFR part 63). These
are the EPA's stringent technological standards, with each standard
controlling for, and enforcing limits of, emissions from particular
sources of pollution.
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\11\ The EPA fully approved Ohio's NNSR and PSD programs in
2003. See 68 FR 1366 (January 10, 2003) and 68 FR 2909 (January 22,
2003).
\12\ The EPA finds that OAC 3745-31-10 contains Ohio's rules for
``NSR projects at existing emissions units at a major stationary
source.'' OAC 3745-31-27 contains Ohio's rules for ``Nonattainment
provisions--administrative procedures for emission offsets.''
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Through this review of Ohio's pre-construction permitting programs,
the EPA finds that the State's permitting programs contain requirements
for the State and sources to comply with Federal emissions limits and
to control for potential emissions from the construction or
modification of sources. As with the federally enforceable control
measures previously referenced, the EPA reiterates that these are
practical and enforceable measures that can control for emissions
without the ANR in the SIP if these requirements are properly enforced
by the State (and complied with by relevant sources). Further, the EPA
finds that Ohio's pre-construction permitting programs do not include
or classify the ANR as a control mechanism or emissions limit, nor does
it include enforcement of the ANR as a stipulation which the State can
utilize as part of its ability to issue or deny permit under State and
Federal rules.\13\
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\13\ Ohio EPA's permit approval discretion is approved into the
SIP at 40 CFR 52.1894(c)(156)(i)(F).
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iii. The EPA's Evaluation of the State's Enforcement Authority
In Ohio's anti-backsliding demonstration, the State explained that
ORC 3704.03 provides the Director of the Ohio EPA the authority to
``enforce those emission limits and control measures necessary to
satisfy'' Ohio's NSR requirements. The EPA finds that ORC 3704.03(F)
stipulates that Ohio EPA will not issue an installation permit unless a
source complies with Ohio's requirements for construction permits,
which includes a requirement that ``applications for installation
permits shall be accompanied by plans, specifications, construction
schedules, and such other pertinent information and data, including
data on ambient air quality impact and a demonstration of best
available technology, as the director may require.'' ORC 3704.03(F).
Section 3704.03(R) allows Ohio EPA to ``[i]ssue, modify, or revoke
orders requiring abatement of or prohibiting emissions that violate
applicable emission standards or other requirements of [Chapter 3704
Air Pollution Control] and rules adopted thereunder, or requiring
emission control devices or measures in order to comply with applicable
emission standards or other requirements of [Chapter 3704 Air Pollution
Control].'' Further, ``[a]ny such order shall require compliance with
applicable emission standards by a specified date and shall not
conflict with any requirement of the Federal Clean Air Act.'' Id. Such
orders include ``Director's Final Findings and Orders'' (DFFOs),
through which Ohio EPA can enforce violations of Ohio's air pollution
control laws.
Ohio can request the EPA to incorporate DFFOs into the State SIP,
thereby making these source-specific requirements Federally
enforceable. The EPA finds that Ohio has used the DFFO process to
establish control and enforcement requirements for various sources and
CAA programs, and continues to maintain an effective enforcement
program to ensure sources are in compliance with the NAAQS.\14\ The EPA
also finds that the State has not included the ANR as an enforcement
mechanism or control measure in its federally-approved DFFO's.
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\14\ See 40 CFR 52.1870(d) for Ohio's EPA-approved DFFOs.
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The EPA also finds that Ohio's permitting programs contain certain
enforcement requirements that provide crucial control of emissions
increases. As presented in the State's demonstration to satisfy
requirements under CAA section 110(l), ORC rule 3704.06, ``Prosecution
by attorney general--injunction--civil penalties,'' stipulates that the
Ohio EPA Director can request the Ohio Attorney General to prosecute
any person who violates ORC sections 3704.05, (``Prohibited acts'') or
3704.16 (``Prohibiting tampering with motor vehicle emission control
systems''). The EPA finds that ORC rule 3704.05--Prohibited acts--
prohibits emissions of air contaminants in violation of any Ohio EPA
rules or State-issued variance agreements, and requires timely and
accurate monitoring, recordkeeping, and reporting practices (as also
required in ORC rule 3704.03(I) and also pursuant to the CAA). Should a
person violate any rule under ORC rule 3704.05, including violating an
air permit issued under ORC rule 3704.03(F) as previously explained,
ORC rule 3704.06 contains provisions for the attorney general (upon
request of the Ohio EPA Director) to bring a civil penalty or ``any
other appropriate proceedings in any court of competent jurisdiction
against any person violating or threatening to violate section 3704.05
or 3704.16 of the Revised Code.'' \15\
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\15\ The EPA also finds that ORC rule 3704.06(E) stipulates
that, ``[u]pon written complaint by any person, the director shall
conduct such investigations and make such inquiries as are necessary
to secure compliance with [Chapter 3704 Air Pollution Control]. The
director, upon complaint or upon the director's own initiative, may
investigate or make inquiries into any alleged violation or act of
air pollution.''
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Upon evaluation of the State's anti-backsliding analysis under
section 110(l) of the CAA, including its explanation of control
measures and enforcement mechanisms in place at the State and Federal
level that control for criteria pollutant emissions, the EPA agrees
that Ohio has demonstrated that removal of the ANR will not interfere
with attainment or maintenance of the NAAQS or any other applicable
requirement of the CAA. Removal will not interfere with reasonable
further progress towards attainment of the NAAQS as well. The EPA finds
that Ohio has demonstrated that the ANR need not reside in the State
SIP for purposes of controlling NAAQS-related pollutants since other,
more actionable measures are in place for that purpose.
B. The EPA's Evaluation of Ohio's Section 193 Demonstration
The EPA explained in its January 2025 Reinstatement that the ANR is
a ``control requirement'' as the term is used in CAA Section 193. 90 FR
6820.\16\ Thus, CAA section 193 prohibits the modification of the ANR
``in any manner'' unless there is a showing that the modification would
result in equivalent or greater emissions reductions. The EPA also
explained in its January 2025 Reinstatement that there is nothing to
stop Ohio from undertaking the SIP revision process and exercising its
``continuing authority to revise choices about the mix of emissions
limitations'' in its SIP, should Ohio determine that the ANR is no
longer appropriate for inclusion in its SIP and such SIP revision
removing the ANR meets applicable CAA requirements, including CAA
section 193. 90 FR 6814 (January 21, 2025), also citing Train, 421 U.S.
at 87.
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\16\ See also 90 FR 6815, citing City of Ashtabula v. Norfolk
Southern Co., et al. 633 F. Supp. 2d 519 (N.D. Oh. 2009)
(determining that the ANR is an emission limitation as defined in
CAA section 302(k)).
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The Ohio EPA has demonstrated that current SIP-approved control
measures and emissions limits relevant to each NAAQS, as explained in
the State's section 110(l) analysis and evaluated by
[[Page 31692]]
the EPA, serve as practical and enforceable measures to control for
criteria pollutant emissions. The EPA finds that, when implemented with
Ohio's enforcement authority (under Federal and State rules), current
SIP-approved measures will continue to limit criteria pollutant
emissions in absence of the ANR to at least an equivalent extent,
therefore satisfying requirements under section 193 of the CAA.
The EPA also considered the requirements added to the SIP since
1974, such as limits on emissions of criteria pollutants, methods for
monitoring for and controlling for emissions, Reasonably Available
Control Technology standards, and Best Available Control Technology
standards. These requirements are stringent, technical standards
approved by the EPA to control emissions of many pollutants including
those related to the NAAQS. In light of the demonstrated and
quantifiable sources of emission reductions that have been implemented
in the fifty plus years since Ohio's ANR was approved into the SIP, the
ANR today is an outmoded mechanism for controlling criteria pollutants.
The EPA also evaluated Ohio's analysis of 23 areas that were
designated as nonattainment before November 15, 1990, but are now
designated as maintenance areas. CAA section 107(d)(3), 42 U.S.C. 7407,
prescribes the criteria and process for redesignating an area from
nonattainment to maintenance.\17\ The EPA revisited its approvals of
Ohio's requests, made under CAA section 107(d)(3), and found that the
Agency considered Ohio's explanations that implementation of pollutant-
specific control strategies and modeled emissions limits would ensure
emissions reductions relevant to the pollutant for which the areas was
deemed nonattainment. These strategies included reducing mobile source
emissions through Federal programs and implementation of site-specific
SIPs, or Federal permits, to require certain sources to control for
high emissions. The EPA found that the State's demonstrations met the
redesignation requirements in CAA section 107(d)(3)(E), and based its
approval on the implementation of these pollutant-specific control
measures and emissions limits. None of these approvals relied on
implementation of the ANR as a control strategy or emissions limit to
ensure that an area would not exceed or violate the NAAQS. As to this
current proposed action satisfying requirements under section 193 of
the CAA, the EPA is proposing to determine that the removal of the ANR
from Ohio's SIP will not cause a subsequent rise in criteria pollutant
emissions or result in a NAAQS attainment area to revert to
nonattainment. In other words, the EPA is proposing to determine that
the Ohio SIP can still maintain status quo air quality without the ANR.
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\17\ CAA section 107(D)(3) states that ``The [EPA] may not
promulgate a redesignation of a nonattainment area (or portion
thereof) to attainment unless--(i) the [EPA] determines that the
area has attained the national ambient air quality standard; (ii)
the [EPA] has fully approved the applicable implementation plan for
the area under section 7410(k) of [the CAA]; (iii) the [EPA]
determines that the improvement in air quality is due to permanent
and enforceable reductions in emissions resulting from
implementation of the applicable implementation plan and applicable
Federal air pollutant control regulations and other permanent and
enforceable reductions; (iv) the [EPA] has fully approved a
maintenance plan for the area as meeting the requirements of section
7505a of [the CAA]; and (v) the State containing such area has met
all requirements applicable to the area under section 7410 of this
title and part D of this subchapter.''
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The EPA also considered Ohio's current nonattainment areas in
context of section 193, and whether the removal of the ANR would have a
negative effect on air quality in these areas. The Ohio areas currently
designated nonattainment for a particular NAAQS are Cleveland (2015 8-
Hour Ozone NAAQS) and Canton-Stark County (2008 Lead NAAQS). As of the
date of this proposed rulemaking, the Ohio EPA has submitted requests
to redesignate both of these areas to attainment: for the Cleveland
area in December of 2025 and for Canton-Stark County in September of
2024. The EPA published its proposed approvals of the Canton-Stark
County redesignation and Cleveland redesignation on April 10, 2026 (91
FR 18372 and 91 FR 18355, respectively). The Ohio EPA did not reference
the ANR as a control strategy or emissions limit used to meet the NAAQS
in either of these redesignation requests.
The EPA acknowledges, however, that Ohio cited the ANR in
litigation regarding a source in the Canton-Stark County lead
nonattainment area. In July 2021, the State of Ohio filed a complaint
against Republic Steel, whose Canton Plant was the only source of lead
emissions near an ambient air monitor located south of the Canton
Plant.\18\ The complaint alleged that lead emissions from the Canton
Plant exceeded the lead NAAQS and thus endangered the health, safety or
welfare of the public and/or caused unreasonable injury or damage to
property, in violation of the ANR and the Canton Plant's air
permits.\19\ In March 2023, the State amended its original complaint to
supplement it with additional counts alleging that Republic Steel was
violating numerous other requirements in the Canton Facility's air
permits, including violations of specific permit requirements and
limits tied to emissions units that were contributing to the lead NAAQS
exceedances.\20\
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\18\ State of Ohio v. Republic Steel, Case No.2021CV00949 (Stark
County, Ohio) ``Complaint for Injunctive Relief and Civil
Penalties'' at ] 16 (July 2, 2021).
\19\ Id. at ] 35.
\20\ Republic Steel, ``Amended and Supplemental Complaint for
Injunctive Relief and Civil Penalties'' (March 14, 2023).
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As discussed at length in this action, Ohio's SIP allows for the
imposition of enforceable emission limits and other operating
requirements in State air permits. Similarly, Ohio's SIP enforcement
authorities allow the State to enforce noncompliance with these
requirements. The State used evidence of lead emissions exceeding the
NAAQS as an initial basis for asserting that the Canton Plant was
causing a threat to human health and the environment and thus causing a
public nuisance in violation of the ANR. However, the ANR itself was
not a necessary tool in the State's enforcement efforts to address the
lead NAAQS exceedances. As demonstrated in the State's amended
complaint, the NAAQS exceedances were addressed through claims alleging
specific regulatory and permit violations, and none of these claims
were contingent on a violation of the ANR.\21\ Furthermore, Ohio EPA
and the Canton City Public Health Department terminated air permits
associated with the Republic Steel facility, effective July 26, 2024,
which was a requirement of a Final Consent Order agreed to by Republic
Steel.\22\
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\21\ Id. at ] 108-167. Specifically, Count Three: Permit
Violation--Exceeding Lead Added Limits to Process Leaded Steel, ]
108-110; Count Four: Permit Violation--Exceeding Lead Emissions
Limits, ] 111-113; Count Five: Permit Violation--Failure to Maintain
Daily Record Keeping of Vacuum Tank Degasser, ] 115-118; Count Six:
Permit Violation--Failure to Take Corrective Measures, ] 119-122;
Count Seven: Permit Violation--Failure to Accurately Maintain
Required Records, ] 123-132; Count Eight: Permit Violation--Failure
to Report Monitoring Deviations, ] 133-142; Count Nine: Permit
Violation--Violation of Permit Conditions at FlexCast Vacuum Tank
Degasser, ] 143-150; Count Ten: Permit Violation and Violation of
Director's Orders--Failure to Conduct Stack Testing on Emissions
Unit P907, ] 151-161; Count Eleven: Violation of Director's Orders--
Failure to Implement an Operations and Maintenance Plan, ] 162-167.
\22\ See State of Ohio v. Republic Steel, No. 21-CV-949, Final
Consent Order and Final Judgment Entry (Ohio Stark Cnty. C.P., Dec
12, 2023).
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While lead emissions exceeding the NAAQS and causing a public
nuisance was one factor in Republic Steel, the State's enforcement case
demonstrates that the Ohio SIP has sufficient
[[Page 31693]]
provisions to address NAAQS exceedances that are independent from and
do not rely on the ANR. Indeed, Ohio's use of the ANR in the Republic
Steel litigation occurred at a time when the ANR was not part of the
State SIP, and the effectiveness of its use in the original 2021
complaint is unclear, given that the area was redesignated to
nonattainment two years later.\23\ On the whole, the record
demonstrates that the ANR was not the primary mechanism for air quality
improvements in the county. Instead, the State relied on the other
mechanisms described throughout this proposed rulemaking including the
DFFO process, enforcement of permit conditions, and the implications of
the EPA's 2023 redesignation of the area to nonattainment.
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\23\ 88 FR 14920 (March 10, 2023).
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Based on the EPA's review, the EPA maintains that since Ohio's 1974
inclusion of the ANR in the State SIP, Ohio has incorporated new
requirements into the SIP and the State's permitting and enforcement
programs that are targeted and practically enforceable, and that they
are better suited, legally and practically, for maintaining and
implementing the NAAQS. In essence, the EPA finds it reasonable for
Ohio to implement its SIP-approved control measures and emissions
limits without the ANR, as removal will not interfere with attainment
or maintenance of the NAAQS and applicable requirements of the CAA, nor
cause a direct increase of emissions. The EPA also finds that measures
in the SIP are practically enforceable regardless of the ANR's presence
in the SIP.
C. Additional EPA Considerations
When evaluating the State's request to remove the ANR from Ohio's
SIP, the EPA also considered the history, and role of, nuisance rules
in State air plans. The EPA has previously discussed that, in the years
following the passage of the CAA in 1970, State and local air agencies
submitted thousands of regulations for incorporation into their SIPs.
85 FR 16309 (March 23, 2020). In some cases, States submitted entire
regulatory air pollution programs, which included various elements not
required by the CAA, such as nuisance provisions. The EPA focused its
review on the SIP requirements needed to address substantive
requirements of the newly-passed CAA, and as a result, some SIPs have
included requirements that the EPA would now deem as duplicative of
more stringent emissions control requirements or limitations.
Since the mid 1990's, various States have requested to remove
nuisance rules from their SIPs, and the EPA agreed with the requests on
the basis that the requirements were not necessary for the SIP to rely
on to reduce or control for emissions, given that updated Federal
requirements also govern emissions from sources of air pollution.\24\
The EPA's current action is consistent with previous Agency action's
removing nuisance provisions from other State SIPs, and with applicable
requirements under the CAA.
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\24\ See removal of nuisance provisions from SIPs for Minnesota,
60 FR 27411 (May 24, 1995); New Hampshire, 83 FR 6972 (February 16,
2018); and Kentucky, 87 FR 12904 (March 8, 2022). See also analogous
examples in the States of: Montana, 59 FR 2537 (January 18, 1994);
Washington, 59 FR 44324 (August 29, 1994; Wyoming, 61 FR 47058
(September 6, 1996); Michigan, 64 FR 7790 (February 17, 1999);
Nevada, 69 FR 54006 (September 7, 2004); Georgia, 71 FR 13551 (March
16, 2006); Arizona and Nevada, 74 FR 51795 (October 8, 2009);
California, 83 FR 43576 (August 27, 2018); and Oregon, 83 FR 60386
(November 26, 2018).
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IV. What action is the EPA taking?
The EPA is proposing to remove Ohio's air nuisance rule from the
Ohio SIP. Upon the submitted material for this SIP revision request,
the EPA finds that Ohio has demonstrated that removal of the ANR from
the SIP will not result in interference with attainment or maintenance
of the NAAQS, nor will it cause an increase in emissions in
nonattainment areas in the State. The EPA has evaluated the State's
menu of emissions control requirements and enforcement mechanisms, and
finds that, if enforced and implemented, these State and Federally-
approved regulations will maintain air quality in the State without the
ANR in the SIP. The EPA's current action will remove the ANR from the
Federal plan, but Ohio will still maintain the ANR as a State rule.
V. Incorporation by Reference
In this rulemaking, the EPA is proposing to amend regulatory text
that includes incorporation by reference. As discussed in section II of
this preamble, the EPA is proposing to remove 3745-15-07 ``Air
Pollution Nuisances Prohibited'' of the EPA-Approved Ohio Regulations
from the Ohio SIP, which is incorporated by reference in accordance
with the requirements of 1 CFR part 51. The EPA has made, and will
continue to make, the SIP 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).
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 action:
<bullet> Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Order 12866 (58
FR 51735, October 4, 1993);
<bullet> Is not an Executive Order 14192 (90 FR 9065, February 6,
2025) regulatory action because this action is not significant under
Executive Order 12866;
<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 the EPA or an Indian Tribe
has demonstrated that a Tribe has jurisdiction. In those areas of
Indian country, the rulemaking 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).
[[Page 31694]]
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Ammonia, Carbon
oxides, Incorporation by reference, Intergovernmental relations, Lead,
Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: May 20, 2026.
Cheryl Newton,
Acting Regional Administrator, Region 5.
[FR Doc. 2026-10643 Filed 5-27-26; 8:45 am]
BILLING CODE 6560-50-P
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</html>Indexed from Federal Register on May 28, 2026.
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.