EPA 'once-in always-in' policy for major polluters is no more

February 13th, 2018 by Dakota Software Staff

The Environmental Protection Agency had long maintained a policy that permanently placed major sources of pollution in that category, even when operational changes meant actual pollutants released into the environment dropped below the recognized threshold. This once-in always-in rule, part of the Clean Air Act and originally instituted in 1995, applied to power plants and similarly large sources of pollution.

That requirement is no longer in effect, as the EPA signaled it would withdraw the provision and allow significant creators of pollution to drop below the major sources category and into the area sources one, which ranks below the first in severity. This change would only come about if facilities have a commensurate reduction in the amount of pollution they produce, Reuters reported.

Major sources of pollution will now be considered differently under EPA policy.

Once-in always-in, no longer

The major short-term result for businesses that have facilities that fell under the major sources category but are now eligible to shed that classification is a lessening in the pollution control standards they must follow. The EPA said overly strict regulations disincentivize the pursuit of new tools and technologies that could lead to greater overall reductions in pollution.

"This 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 EPA's Office of Air and Radiation, in a statement released by the agency. "It will reduce regulatory burden for industries and the states, while continuing to ensure stringent and effective controls on hazardous air pollutants."

A variety of environmental groups disagreed with the decision and made statements about the potential negative effects of the policy change. The new rule could lead to more hazardous materials, like lead and mercury, entering the environments around the facilities they come from and floating further downwind.

Law firm Foley & Lardner LLP predicted that many businesses that once faced perpetual classification for one or more facilities as major sources but had subsequent changes that lowed actual pollution levels will soon seek a change in classification from the federal environmental regulator. The policy change may also have an impact on current EPA investigations related to compliance and enforcement of the now-former rule.

This major rule change will have an impact on a variety of industries moving forward, as companies adapt to the new normal and formulate business plans with this new standard in mind.