The EPA’s “Once in, Always in” Policy Could be on its Way Out

by Zachary Randall

The Clean Air Act (“CAA”) categorizes stationary sources into either major sources or area sources based on the amount of actual or potential discharges.[1] In 1995, the Environmental Protection Agency (“EPA”) released a guidance memorandum which specifies the timing required for Maximum Achievable Control Technology (“MACT”).[2] The memorandum includes specifications of when a new or existing source can achieve the status of area source.[3] In addition, it stated that if a facility was designated as a major source by the first compliance date, it they would have to continually achieve major source MACT Standards.[4] This policy became known as the “Once in, Always in” policy and was utilized in order to prevent backsliding and reduce the emission of hazardous air pollutants.

On January 25, 2018, the EPA released a guidance memorandum stating that it was actively withdrawing the “Once in, Always in” policy because it is contrary to the plain language of the CAA.[5] The memorandum stated that the change in policy was put in place because it penalizes the CAA does not allow the EPA to impose a “temporal limitation” on a source because if a source reduces its emissions, it should be held to lesser standards.[6] The EPA then published this memorandum in the federal register in order to take comment on the new policy.[7]

Certain environmental groups believe that the new policy will allow stationary sources to evade stricter regulations and create a loophole, which would allow a greater amount of pollution into the atmosphere.[8] The Environmental Defense Fund created a study which analyzed the possible increase in pollution if the policy went into effect, specifically looking at the Houston-Galveston area of Texas.[9] The case study identifies 18 facilities which could be affected by the new policy.[10] If all of these facilities were change their designation due to the new policy and  increase their release of hazardous air pollutants, the output of pollutants from those facilities would increase by 146 percent from 2014 levels.[11]

A case has been filed in the D.C. Circuit court against the EPA by California and several environmental groups, stating that the new policy is a legislative action which should have undergone the notice and comment period.[12] Since the policy did not undergo the correct rulemaking procedures, it violates the Administrative Procedure Act and should be repealed.[13] In addition, they state even it was not a legislative rule, it should still fail because it was arbitrary and capricious.[14] The case has not been decided yet and the oral arguments are set to take place soon.

 

 

[1] 42 U.S.C. § 7412.

[2] John S. Seitz, U.S. Environmental Protection Agency, Memorandum, Potential to Emit for MACT Standards – Guidance on Timing Issues, 1 (May 16, 1995) (withdrawn Jan. 25, 2018) (https://www.epa.gov/sites/production/files/2015-08/documents/pteguid.pdf).

[3] Id. at 5-8.

[4] Id.  at 9.

[5] William L. Whrum, U.S. Environmental Protection Agency, Memorandum, Reclassification of Major Sources as Area Sources Under Section 112 of the Clean Air Act, 1 (Jan. 25, 2018) (https://www.epa.gov/sites/production/files/2018-01/documents/reclassification_of_major_sources_as_area_sources_under_section_112_of_the_clean_air_act.pdf).

[6] Id. at 3.

[7] Issuance of Guidance Memorandum, ‘Reclassification of Major Sources as Area Sources

Under Section 112 of the Clean Air Act, 83 Fed. Reg. 5543 (Feb. 8, 2018).

[8] Tomás Carbonell et. al., Environmental Defense Fund, Pruitt’s New Air Toxics Loophole: An Assessment of Potential Air Pollution Impacts in the Houston-Galveston Region, 1 (https://www.edf.org/sites/default/files/documents/OIAI-Houston%20case%20study%20FINAL.pdf)

[9] Id.

[10] Id. at 2.

[11] Id.

[12] California Communities Against Toxics et al. v. EPA et al., No 18-1085 (D.C. Cir. filed Mar. 26, 2018).

[13] Id.

[14] Id.

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