Recently, some commotion started surrounding an Environmental Protection Agency (EPA) policy change concerning the reclassification of major sources of hazardous air pollutants (HAPs).  The policy shift effectively rolls back the “Once In, Always In” stance for major sources.  The EPA held that interpretation for over 20 years.  As with most changes in environmental policy, the move garners both supporters and opponents.  However, today we will cover primarily the facts because the true impacts of this EPA-proclaimed regulatory burden reduction are unknown.

Where it all Started . . . The Clean Air Act (CAA)

U.S. laws have included protections from air pollution since 1955.  However, the 1990 CAA Amendments created our present road map to decrease HAPs from major sources.  CAA Section 112, which is codified as 42 United States Code (USC) §7412, addresses HAPs.  As you would expect, major and area sources are both defined within the CAA:

• A major source is “any stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit considering controls, in aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants.” 42 USC §7412(a)(1)
• An area source is “any stationary source of hazardous air pollutants that is not a major source.” 42 USC §7412(a)(2)

The implementation of Maximum Achievable Control Technology (MACT) serves a primary major source requirement within the CAA.  MACT compliance can be costly and time consuming.  Moreover, it evolves over time due to mandated EPA reviews of the industry-based MACT standards at least once every 8 years.

How it was for 20+ years . . . the Seitz Memo

On May 16, 1995, the EPA issued a policy memorandum titled Potential to Emit for MACT Standards – Guidance on Timing Issues.  The memo came from then EPA Director, Office of Air Quality Planning and Standards, John S. Seitz.  It spelled out the timing for major sources to become area sources by taking permit limits on potential to emit (PTE).  The memorandum effectively established EPA’s policy on the subject as the following:

• Major sources were allowed to choose area source status up until the first compliance date of the standard, i.e. the first date the source was mandated to comply with any MACT provision.
• Once sources were required to comply with MACT, implementation of differing measures or controls to reduce HAPs to levels below that of a major source ought not be allowed (i.e. “Once In, Always In”).

EPA’s New Policy . . . “Once In, Always In” No More

The EPA issued the Reclassification of Major Sources as Area Sources Under Section 112 of the Clean Air Act memorandum on January 25, 2018.  This document effectively withdraws the Seitz Memo.  The new policy memo, states the Once In, Always In policy “is contrary to the plain language of the CAA, and, therefore, must be withdrawn.” 

In addition, the new memorandum supports the interpretation that a major source may select PTE permit limits and implement measures to lower HAPs below major source levels whenever it sees fit.  So, a major source may decide to pursue reclassification to an area source at any time.  By the memo’s reasoning, the CAA does not put time restrictions on the classification of a source.  As such, EPA’s policy should not.  

The new policy memo also references comments on a past 2007 EPA proposal concerning this issue. According to the new memorandum, these comments describe the Seitz Memo as creating “a disincentive for sources to implement voluntary pollution abatement and prevention efforts, or to pursue technological innovations that would reduce HAP emissions.” 

The January 25, 2018 memo went into effect immediately upon issuance.  You can access EPA’s press release concerning the new policy memorandum here.

Now What?

You have read the facts, now my personality forces me to share a disclaimer and one opinion.  The disclaimer . . . I am not a fortune teller (although that would be a cool skill to have), so my opinion may ultimately turn out to be false.  My opinion . . . I don’t believe this particular policy shift creates a world where major sources jump for joy and try to reclassify their sites in droves. 

As I stated previously, MACT compliance can be costly.  It just would not make sense to me to spend additional time and money to strive for a reduction to area source levels.  You have already made an investment to comply with MACT.  This would especially be true for those sources with PTEs far in excess of the applicability thresholds. 

Another thing to keep in mind . . . EPA’s new policy may change if the political party in the majority changes.  Given our current political climate, who knows what’s going to happen?

However, the EPA did publish a notice of the memorandum’s issuance in 83 FR 5543 on February 8, 2018.  The notice states that EPA plans to open future comment on the idea of incorporating regulatory language aligning to the new policy position.  Including the current policy within regulation would give some protection against future changes.  If the policy is incorporated into regulation, rulemaking would be needed to modify the regulatory language.  We will just have to stay tuned to the Federal Register for more developments.

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