On November 19, 2020, U.S. EPA published its decision to remove Ohio’s air pollution nuisance rule from Ohio’s SIP in the Federal Register. The removal came at the request of Ohio EPA because the nuisance rule does not have a reasonable connection to the attainment of the NAAQS in Ohio, and U.S. EPA erred in approving it as part of Ohio’s SIP. Like in other states where a nuisance rule has been removed from the SIP, U.S. EPA agreed that the rule has not been relied upon to demonstrate implementation, maintenance or enforcement of any NAAQS. Ohio’s nuisance rule is codified in Ohio Administrative Code Rule 3745-15-07, which provides as follows: “[t]he emission or escape into the open air from any source or sources whatsoever, of smoke, ashes, dust, dirt, grime, acids, fumes, gases, vapors, 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, is hereby found and declared to be a public nuisance. It shall be unlawful for any person to cause, permit or maintain any such public nuisance.”

This rule is still in effect and is not impacted by U.S. EPA’s removal of the air nuisance rule from Ohio’s SIP. The practical effect of U.S. EPA’s action, however, is that claims for violations of Ohio’s air nuisance rule will need to be filed in the state court system in Ohio, and not subject to citizen suits under the Clean Air Act in federal court.

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