EPA reclassification could significantly change pollution rules

August 7th, 2019 by Dakota Software Staff

The Environmental Protection Agency recently moved forward on a rule change that will have a significant impact on large facilities that qualify as major sources of hazardous air pollutants. With a notice published in the Federal Register in early July, the federal environmental agency opened a 60-day public comment period, although it appears the agency is strongly behind the proposed new rule. Let's look at this change in more detail, what led up to it and how it will affect businesses assuming it comes into force.

Key events leading up to the new rule

"The new HAP rule would allow major sources of HAP to reclassify if they meet certain standards."

From 1995 until 2018, the EPA relied on an interpretation of the Clean Air Act called the "Once In, Always In" policy in relation to major sources of HAP. The OIAI policy required facilities that qualified as major sources of HAP on the first compliance date of a maximum achievable control technology standard were forever after categorized in this way. That meant regardless of the building or complex owner's actions — like reducing pollution output or changing internal operations — it always had to comply with the standards that govern such facilities.

In 2007, the EPA engaged in an effort to allow reclassification, based on a facility's ability to obtain enforceable limits on its potential to emit below the major source thresholds developed. However, that change was never finalized. A similar effort, based on a new interpretation of the CAA that revoked the OIAI policy, was made in 2018 and has continued to progress through to the present day.

Where the situation now stands

While the guidance related to dismissing the OIAI policy has been in place since 2018, codifying it as a rule will give it a significant amount of staying power moving forward. While it would be relatively simple for a future administration to overturn a policy interpretation via memo, changing regulations is a much more complicated process.

Proponents of the OIAI policy believe that a lack of a constant standard could lead to businesses backsliding and having higher emissions levels over time that they would with the strict major source of HAP standard in place. Those supporting the recent change in EPA rules feel that modernizing and simplifying rules is in the best interest of the federal regulator and the businesses that fall under the regulation.