“I’ve introduced a resolution to reverse this bad-faith policy because it hurts Ohioans and does nothing to improve our air quality,” U.S. Sen. Jon Husted, R-Ohio, said about Senate Joint Resolution 29.
Lawmakers say there’s enough recourse available for citizens under private nuisance laws within Ohio’s administrative code, but proponents of the regulation say it’s an added resource to enforce the federal Clean Air Act through federal court.
Credit: AP
Credit: AP
Air nuisance rule is back for now
The U.S. Environmental Protection Agency removed the air nuisance rule in Ohio’s State Implementation Plan under the Clean Air Act in November 2020 during President Donald Trump’s first term in office.
The agency then reimplemented it as former President Joe Biden left office.
The reimplementation of the rule is a move Republican lawmakers say is a last minute punishment against Ohio from the former Biden administration, while the notice itself says it is in response to a federal court ruling. The U.S. EPA also said at that time it believed the air nuisance rule had been removed in error.
“One of the Biden administration’s last acts was to punish Ohio by making our businesses targets for lawsuits that the EPA has explicitly barred in other states,” Husted said.
Husted and U.S. Sen. Bernie Moreno, R-Ohio, are cosponsoring Senate Joint Resolution 29, which would remove the air nuisance rule permanently from Ohio’s State Implementation Plan under the Clean Air Act.
Credit: AP
Credit: AP
“Joe Biden spent four years trying to turn Ohio into California by mandating outrageous new environmental standards that would stifle businesses and kill jobs. I’m proud to join Senator Husted in beginning to roll back the Biden EPA’s egregious behavior,” said Moreno.
The Clean Air Act requires states to submit an implementation plan to the U.S. EPA administrator that provides for implementation, maintenance and enforcement of the National Ambient Air Quality Standards (NAAQS).
The Clean Air Act was first enacted in 1963 with the last largest set of changes added in 1990.
For about 50 years, people could submit a complaint to regulatory agencies about a business or entity accused of violating the air nuisance rule under Ohio’s State Implementation under the Clean Air Act, according to the Sierra Club, an environmental organization and the entity that sued the U.S. EPA in order to get the air nuisance rule added back into Ohio’s State Implementation Plan.
If the problem was not fixed within 60 days, Ohioans could then go directly to federal court with a lawsuit, the Sierra Club said.
State nuisance laws not impacted
Ohioans can still file lawsuits regarding private nuisance and other tort claims, which are civil wrongs that harm other people. Those types of lawsuits fall under state laws, which cover private nuisance claims.
A local example of what would not have been affected by the air nuisance rule getting removed from Ohio’s State Implementation Plan under the Clean Air Act is the class action lawsuit from residents of the McCook Field neighborhood in Dayton.
Credit: Jim Noelker
Credit: Jim Noelker
The U.S. EPA categorized that location as a Superfund Site due to a toxic plume of gas underneath the homes in that area from contaminants from the former Behr Dayton Thermal plant.
The 2008 lawsuit against Behr Dayton started in the Montgomery County Common Pleas Court before it utilized the Class Action Fairness Action to file a class action suit in federal court stemming from state law.
The residents later agreed on a $9 million settlement from Behr Dayton.
2006 lawsuit relied on air nuisance rule
A local example of a citizen lawsuit that would have been affected by the removal of the air nuisance law from Ohio’s State Implementation Plan under the Clean Air Act is Fisher v. Perma-Fix of Dayton, Inc., a lawsuit from 2006.
A Jefferson Twp. industrial treatment plant formerly known as Perma-Fix of Dayton was in a residential area, and previous neighbors complained for years about strong odors and fumes they said caused nausea, headaches, dizziness, and breathing problems.
A December 2007 consent decree was reached to settle the federal lawsuit against Perma-Fix filed by neighbors and later supported by the U.S. EPA. The consent decree required the plant to establish measures to limit the kinds of materials it accepts.
The lawsuit against Perma-Fix specifically cited the air nuisance rule within Ohio’s State Implementation Plan under the Clean Air Act as the legal basis for the lawsuit.
Clean Water Ltd. bought the plant shortly after the consent decree was approved. It changed ownership again when Monroe-based Valicor Environmental Services purchased the site in 2023.
Mandating compliance
The federal lawsuits under the air nuisance rule are intended more to mandate compliance from a business or entity causing a nuisance to a community or the area around it and are not necessarily about getting compensation from the business, like with the class action suit in the McCook Field neighborhood.
Having the air nuisance rule in Ohio’s State Implementation Plan allows residents to file lawsuits against facilities in violation of the nuisance provision of their air quality permit even if the Ohio EPA said the facility did not operate as a nuisance, said Kristie Ortiz, managing attorney for housing and community economic development at Advocates for Basic Legal Equality, Inc.
“I think this is the crucial aspect of the rule, because there are a number of different ways you can file suit for violations of your environmental rights, but this rule gives residents a direct route to file in federal court,” Ortiz said.
People still have the ability to file in state court; however, from 2010 to Feb. 20, 2025, Ohio did not include the language of the air nuisance rule in the permits they issued, so residents could not site to a clear violation of the permits given to different facilities, Ortiz said.
Manufacturers show support for S.J. Res. 29
This legislation has the support of manufacturing companies in Ohio, which see the regulation as putting Ohio companies in the position as being “unfairly burdened by federal overreach,” according to Ryan Augsburger, president of the Ohio Manufacturers’ Association.
“The joint legislation introduced to overturn the Environmental Protection Agency’s recent decision to reinstate Ohio’s nuisance rule is a move to return Ohio’s regulatory environment to one of consistency and fairness, allowing Ohio to continue to manage its own policies without federal overreach,” Augsburger said
The air nuisance rule puts Ohio businesses in the position of being “unfairly burdened by federal overreach,” Augsburger said.
Other states, like California, Kentucky, Georgia, Michigan, Minnesota, Nevada, New Hampshire, New York, Rhode Island and Wyoming, do not have their own air nuisance rules within their State Implementation Plans under the Clean Air Act.
Senate Joint Resolution 29 was referred to the Committee on Environment and Public Works after it was introduced this month.
Credit: Rick Buchanan
Credit: Rick Buchanan
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