On June 27, 2013, the Ohio Court of Appeals for the Tenth Appellate District issued a decision regarding the lawfulness of Ohio EPA’s adoption of the Air Toxics Rule (OAC 3745-114-01), pursuant to Ohio Revised Code Chapter 3704.03(F)(3)(c). See Sierra Club v. Koncelik, 2013-Ohio-2739. While the adoption of the Air Toxics Rule was, in large part, upheld, the rule may need to be modified to include additional chemical compounds on the list of regulated air toxics.
Under the Air Toxics Rule, only air contaminants that pose a threat of “adverse human health effects” are required to be on the list of regulated air toxics. Ohio EPA, in its evaluation of the chemical compounds to be regulated as air toxics under the final Air Toxics Rule, excluded compounds categorized as irritants, acute exposure events, non-inhalation routes of exposure, consumer products, and compounds not currently used in Ohio. However, the court determined that Ohio EPA’s categorical exclusion of compounds (1) demonstrated toxic through non-inhalation routes of exposure and (2) no longer used or produced in Ohio is inconsistent with express statutory language, and recommended that Ohio EPA “examine each individual compound in these two categories and determine if the compound is required to be placed on the list.”