Time to Toss It Out? The 'Once In, Always In' Policy for 'Major Source' Hazardous Air Pollutant Standards

Date01 July 2017
Time to Toss It Out? The “Once In,
Always In” Policy for “Major Source”
Hazardous Air Pollutant Standards
by Brian C. S. Freeman
Brian C. S. Freeman is a Senior Associate at Robinson+Cole.
The U.S. Environmental Protection Agency’s (EPA’s)
recent call for regulatory reform suggestions1 oers a
good opportunity for ending a long-standing regu-
latory overreach: EPA’s “once in, always in” policy (OIAI
policy) for standards applicable to a major source of hazard-
ous air pollutants (HAPs) under the Clean Air Act (CAA).2
In brief, the OIAI policy asserts that if a faci lity ever
had HAP potential emissions above levels that trigger a
major source control standard, the facility must comply
with that standard permanently, even where the facility
has since reduced its potential emissions below the trig-
ger levels. e result is needless compliance burden and
expense, transactions complicated or threatened by dis-
covery of a once in, always in situation, and unwarranted
enforcement actions and penalties.
As discussed in this Comment, the OIAI policy disre-
gards the plain English of the relevant CA A provisions,
and is inconsistent w ith EPA’s interpretations of similar
provisions elsewhere in the Act. e legal basis for t he
OIAI policy has never been apparent; EPA instead has jus-
tied the OIAI policy on practical grounds, which today
are largely moot.
e OIA I policy presents an attractive candidate for
withdrawal under EPA’s recent reform initiative. As a
policy rather than a regulation, EPA c an revoke it with-
out need for rulemaking.3 e OIAI policy has apparently
never been adjudicated, so withdrawal would not create
conicts with prior case law. Lastly, sources dismissed
from major source requirements by withdrawal of the
OIAI policy would t hen become subject to existing sta n-
1. Evaluation of Existing Regulations, 82 Fed. Reg. 17793 (Apr. 13, 2017).
2. 42 U.S.C. §§7401-7671q; ELR S. CAA §§101-618.
3. See Perez v. Mortgage Bankers Ass’n, 575 U.S. ___, No. 13-1041, slip
op. at 7-8, 45 ELR 20050 (Mar. 9, 2015) (an agency’s withdrawal of an
interpretative rule, even if long-standing, does not require public notice and
comment under the Administrative Procedure Act, 5 U.S.C. §553(b)).
dards and other EPA authority under the C AA for non-
major HAP sources.
I. Background: CAA Requirements for
HAP Sources
Section 112 of the CA A, as substantially amended in 1990,
directs EPA to reg ulate HAP emissions.4 Among other
things, EPA must adopt emission standards that require
Maximum Achievable Control Technology (MACT) for
“major sources” of HAP. A s the name implies, MACT
standards are stringent, in terms of substantive controls as
well as inspection, recordkeeping, and reporting require-
ments. e CAA denes a HAP “major source” as a source
that “emits or has the potential to emit” 10 tons per year
(TPY) or more of any individual HA P or 25 TPY or more
of any combination of HAPs.5 EPA may also set lower
thresholds for particular sources due to characteristics of
the HAP(s) emitted or “other relevant factors.”6
EPA has dened “potential to emit” for HAPs essentially
as worst-case, maximum emissions (running 24/7/365, at
maximum rated capacity).7 Emission controls or other
limitations are recognized only to the extent that they are
federally enforceable (e.g., required by a federally enforce-
able permit or regulation).8 As a result, a facility can be
considered a major source subject to a MACT standard for
the facility’s industrial categor y even if the facility’s actual
emissions are well below major source levels.
4. e CAA lists some 189 HAPs, and authorizes EPA to add or subtract to
this list. 42 U.S.C. §7412(b). EPA has deleted three substances from the list.
See 40 C.F.R. Part 63, Subpart C.
5. 42 U.S.C. §7412(a).
6. Id.
7. 40 C.F.R. §63.2 (denition of potential to emit).
8. Id. Due to subsequent case law, EPA also recognizes that a source’s potential
to emit HAPs can also be limited by controls that are enforceable as a
practical matter. See also Memorandum from John S. Seitz on Release of
Interim Policy an [sic] Federal Enforceability of Limitations on Potential
to Emit, to EPA Regional Oces ( Jan. 22, 1996) (responding to holding
in Nat’l Mining Ass’n v. EPA, 59 F.3d 1351, 25 ELR 21390 (D.C. Cir.
1995)), available at https://www.epa.gov/sites/production/les/2015-08/
Author’s Note: e author thanks Jim Romanski, Powerhouse EH&S
Manager at Yale University and Chair of the Connecticut State
Implementation Plan Regulatory Advisory Committee (SIPRAC),
for his insightful review and comments.
Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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