Regulatory Reform- Elimination of the "Once In Always In" Policy

President Trump's efforts at regulatory reform continued with the announcement on January 15, 2018 that the U.S. EPA would withdraw its "once in, always in" policy for classification of Major Sources of hazardous air pollutants (HAPs) under section 112 of the Clean Air Act.  Newly sworn in Assistant Administrator of EPA's Office of Air and Radiation, Bill Wehrum, made the announcement.  Anticipating forthcoming legal challenges Mr. Wehrum stated that the revocation of the policy was "based on a plain language reading of the statute that is in line with EPA's guidance for other portions of the Clean Air Act."

What is a Major Source of HAPs?

Under the Clean Air Act a “Major Source” is a air pollution source that has the potential to emit of 10 tons per year of any HAP or 25 tons per year or more of any combination of HAPs. Major sources must obtain a Title V permit which is a highly complex federal permit with stringent reporting and record keeping requirements. Any source of HAPs below these thresholds is classified as an "area source" and is subject to far less regulatory requirements.  

What is the "Once in, Always In" Policy?

Historically, U.S. EPA allowed sources to voluntarily limit emissions below the HAP "Major Source" thresholds through a permit (referred to as a "synthetic minor permit" because it caps emission below thresholds).  However, sources were required to cap emission with such a permit before the compliance date established under Clean Air Act regulations, specifically, standards known as Maximum Achievable Control Technology (MACT).  If a source couldn't obtain a permit or limit its emissions due to production or other business needs, the source was always classified as a "major source."  The source was not allowed to later find ways to reduce HAP emissions and be declassified as a "Major Source."

What does U.S. EPA's Revocation of the Policy Mean?

Under U.S. EPA's new guidance, facilities maybe able to opt-out of the major source MACT standards and Title V permitting requirements at any time.  Sources that are currently "Major Sources" now have incentive to finds ways to control or reduce emissions to reduce their regulatory burden.  

What is Likely to Happen Next?

U.S. EPA says it wants to put its latest interpretation into rules to make it harder for the next Administration to revert back to the "Once in, always in" policy.  It plans on publishing notice in the Federal Register to take comments on adoption of such a rule.  

Like many of the Trump Administration's regulatory reforms of EPA, expect the latest announcement to be challenged in the courts.  

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