Once In, Always In

Jacqueline Mietus
Associate Editor
Loyola University Chicago School of Law, JD 2019

The Environmental Protection Agency (“EPA”) recently issued a guidance memorandum withdrawing the decades-old “once in, always in” policy. The policy prohibited facilities once considered to be major sources of emissions of hazardous air pollutants to be later reclassified. These facilities are always subject to the class Maximum Achievable Control Technology (“MACT”) standards, regardless of any newly implemented processes or controls that reduce emissions.

However, the EPA found that the policy was established upon an incorrect interpretation of the Clean Air Act. Facilities may now be reclassified as “area sources” if their emissions fall below the threshold and will be subject to less strict standards.

“Once in, Always in”

The Environmental Protection Agency (“EPA”) created the “once in, always in” policy under Section 112 of the Clean Air Act in a 1995 memorandum. The 1995 memorandum established the standard that once a facility was classified as a “major source” of hazardous air pollutants, it could not be reclassified after the first compliance date. Once classified, these facilities remained perpetually subject to the class Maximum Achievable Control Technology (“MACT”) standards, regardless of any newly implemented processes or controls that reduce emissions of hazardous air pollutants.

According to the Clean Air Act, a “major source” is a facility that emits or has the potential to emit 10 tons of any hazardous air pollutants, or 25 tons per year or more of a combination of hazardous air pollutants. An “area source” is a facility that emits hazardous air pollutants below the aforementioned threshold and is subject to different standards.

For more than 20 years, major sources were held to stricter standards even if they operated below the threshold. The 1995 memorandum states, “Without a once in, always in policy, these facilities could ‘backslide’ from MACT control levels by obtaining potential-to-emit limits, escaping applicability of the MACT standard, and increasing emissions to the major-source threshold.” The 1995 memorandum further reasons, “A once in, always in policy ensures that MACT emissions reductions are permanent, and that the health and environmental protection provided by MACT standards is not undermined.”

Intent to Repeal

On January 25, 2018, the EPA issued a memorandum withdrawing the decades-old “once in, always in” policy. The EPA’s recent memorandum supersedes the EPA’s 1995 memorandum, with the withdrawal effective immediately. The EPA anticipates publishing a Federal Register notice soon.

“The guidance is based on a plain language reading of the statute that is in line with EPA’s guidance for other provisions of the Clean Air Act,” said Bill Wehrum, Assistant Administrator of the EPA’s Office of Air and Radiation. The EPA has found that the 1995 memorandum relied on an incorrect interpretation of the Clean Air Act. The EPA states there is no statutory authority permitting a time limit on a facility’s classification; instead, the Clean Air Act allows facilities to be reclassified once their potential to emit hazardous air pollutants falls below the major source classification threshold. Facilities once reclassified will be subject to less strict standards.

Reactions to Repeal

The EPA’s withdrawal of the “once in, always in” policy aligns with President Trump’s effort to roll back federal regulations. Bill Wehrum has stated, “It will reduce regulatory burden for industries and the states, while continuing to ensure stringent and effective controls on hazardous air pollutants.” In the memorandum, the EPA argues the “once in” policy to have disincentivised facilities from implementing pollution prevention efforts or technological innovations that would decrease emissions. John Barrasso, Senate Environment Committee Chairman, stated, “Withdrawal of this policy means manufacturers, oil and gas operations, and other types of industrial facilities will have greater incentive to reduce emissions.”

However, environmentalists believe that the withdrawal of the “once in, always in” policy, along with other environmental regulation rescissions by the Trump administration, harms the environment and public health while benefiting the industries the EPA was created to regulate. John Walke, the Director for Clean Air Issues at the Natural Resources Defense Council (“NRDC”), claimed, “This is among the most dangerous actions that the Trump EPA has taken yet against public health. Rolling back longstanding protections to allow the greatest increase in hazardous air pollutants in our nation’s history is unconscionable.” Similarly, John Coequyt, the Global Climate Policy Director for the Sierra Club, considered the rollback to be an attack on public health and clean air. Coequyt warned that President Trump and Scott Pruitt, the EPA Administrator, “are essentially creating a massive loophole that will result in huge amounts of toxic mercury, arsenic, and lead being poured into the air we breathe, meaning this change is a threat to anyone who breathes and a benefit only to dangerous corporate polluters.”

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