EPA Ends 20 Year “Once In, Always In” Policy for MACT Standards: May Effect Enforcement, New Permits

Foley & Lardner LLP

In a major change in air permitting policy, on January 25, 2018 U.S. EPA reversed its longstanding “once in, always in” policy governing what sources are subject to major source regulations for the emissions of air toxics under Section 112 of the Clean Air Act. Under a 1995 policy memorandum issued by the agency, sources that had the potential to emit above the major source thresholds at the time a standard applied to a particular source category were “always in,” and had to forever comply with that standard—even if the source subsequently installed emission control equipment or switched to non-hazardous air pollutant substances, and took enforceable limits to keep emissions below those limits. The January 25 memorandum reverses that policy, and authorizes the reclassification of a major source to an area source at such time as the source takes enforceable limits on potential to emit below the major source thresholds.

This change will likely lead to numerous sources seeking reclassification from “major” to “area” source status, in order to take advantage of more streamlined recordkeeping and reporting requirements applicable to such facilities. It may also have implications for some enforcement cases currently being pursued by the agency. States have incorporated the federal major source requirements into air permits, and as such, the requirements remain in effect until the permit is modified. Facilities should review their air permits and work with state agencies to remove the unnecessary and burdensome requirements.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Foley & Lardner LLP | Attorney Advertising

Written by:

Foley & Lardner LLP

Foley & Lardner LLP on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.