December 3, 2025
The Air Nuisance Rule: Our Safety Net Against Air Pollution
The Clear Air Act (CAA) gives the U.S. Environmental Protection Agency (EPA) the power to set National Ambient Air Quality Standards (NAAQS), which are carried out through state-created State Implementation Plans (SIPs). The EPA also has the power to revise these SIPs, and through this power, has removed, reinstated, and again plans to remove Ohio’s Air Nuisance Rule (ANR).
Ohio’s ANR declares air pollution nuisances unlawful if they consist of “[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[.]”
The Ohio ANR has been used in many suits to support claims seeking relief for individuals harmed by industrial polluters. Without the Ohio ANR, individuals and families living in communities subject to industrial air pollution may lose their ability to enforce the CAA in federal court, even when state and federal agencies fail to conduct adequate enforcement.
So how have Ohioans used the ANR in court to challenge air pollution in their communities?
Air pollution from wastewater treatment
In the 2004 case Fisher v. Perma-Fix of Dayton, Inc., an injured plaintiff alleged a strict liability claim in a federal forum against a wastewater treatment and storage facility under violations of Ohio’s ANR and the CAA. According to the complaint, this wastewater treatment and storage facility handled hazardous wastewater and materials, and through storing and treating wastewater, their operations produced noxious emissions, impacting the health of individuals living within the “zone of influence” of the treatment site.
Air pollution from hazardous waste
In a 1999 case named Hertzler v. Vernay Labs., Inc., where plaintiffs brought a negligence per se claim under Ohio’s ANR among other statutes, the complaint alleged a rubber manufacturer emitted. It was continuing to emit “hazardous waste, hazardous waste constituents, pollutants, odors, fumes, [and] contaminants into the soil, sediments, water, and the air[.] It further alleged that these chemical releases were causing injuries to plaintiffs, including, but not limited to, unreasonable damage to property, emotional distress, including “fear of future disease,” and medical expenses.
Air pollution from a coke facility
In the 2017 case Sampson et al v. Suncoke Energy, Inc. et al, plaintiffs alleged that the release of hazardous chemicals by a coke facility that produces approximately a million tons of coke per year caused numerous injuries. These injuries include loss of enjoyment of their property, adverse health symptoms, and property damage to their physical property and animals they own. Plaintiffs also allege that they were able to see visible accumulations from the emissions on their property, as well as various colors of “plumes, clouds, or hazes” from the coke facility. Plaintiffs used these facts to allege a violation of the ANR as a claim for injunctive relief, litigation costs, and civil penalties.
In another case involving a coke company, which produces thousands of tons of coke each year, plaintiffs alleged that improper permitting, and reckless and/or negligent operation of the coke facility have resulted in hazardous emissions causing harm to their properties, health, and safety, and that these emissions have resulted in deposits of substances emitted from the coke facility in their homes. Plaintiffs in this case allege a violation of Ohio’s ANR and request injunctive relief for their operation until the facility is compliant with necessary permits, remediation of all environmental impacts they have caused, civil penalties, and more.
So why is the ANR being removed from Ohio law?
It would make sense, given the types of defendants in these suits, that industrial polluters are largely in opposition to Ohio’s ANR. They likely do not want to be held responsible for the impacts their emissions have caused, despite the consequences these emissions may have on the communities located near these polluters.
Right now, the Ohio EPA is working to remove the Air Nuisance Rule from Ohio’s State Implementation Plan. The OEC joined partners in opposing the removal, and we also filed a lawsuit to appeal the law requiring Ohio EPA’s removal of the ANR.
If you want to learn more about the history of Ohio’s Air Nuisance Rule, join the OEC Law Center for its upcoming webinar on December 17 at 12 PM!
