By Alex Guillén 10/01/2020 03:55 PM EDT
EPA finalized a regulation on Thursday cementing a policy shift that could ease the air pollution requirements for thousands of industrial facilities, saving companies tens of millions of dollars but potentially opening the door to increased emissions.
Background: Thousands of facilities are required to meet regulations regarding nearly 200 hazardous air pollutants. The facilities are divided into two categories based on emissions levels: “major sources,” which emit or could emit more than 10 tons per year of any one pollutant or 25 tons per year of any combination of pollutants, and the lesser designation “area source,” which fall below that threshold and are subject to less stringent or even no regulation of emissions.
EPA issued a memo in 1995 stating that any facility classified as a major source would remain in that category permanently, even if its emissions drop below the threshold, in what came to be known as the “once in, always in” policy. Companies have long argued that policy dissuades them from investing in pollution reduction technologies because reducing emissions did not reduce regulatory burden.
The Bush administration in 2007 proposed a similar rule to one issued on Thursday, but never finalized it. EPA issued a new policy memo in 2018 reversing the “once in, always in” policy. The D.C. Circuit Court of Appeals tossed out a legal challenge to that memo from environmentalists after finding it was not a final agency action subject to judicial review — although this new regulation will be.
The final rule: Under the final rule (Reg. 2060-AM75), which EPA is calling the Major MACT to Area or MM2A rule, any major source that lowers its “potential to emit” — the source’s top possible air toxics output — below the threshold can at any time apply to EPA to be reclassified as an area source, along with the reduced regulatory requirements. Sources that downgrade may also avoid having to secure Title V operating permits every five years.
That could motivate some facilities to install new controls or change their operations to reduce emissions levels. It also could allow older facilities that don’t run as often and thus emit less to comply with eased monitoring and reporting requirements.
EPA said 7,183 facilities across the U.S. are classified as major sources, but that one-third of those emit pollution at 75 percent or less of the threshold. If all of those reclassified, it would save the companies $16.1 million in the first year and $90.6 million annually afterward. Depending on how various industries and specific facilities respond to the rulemaking, it could lead to a reduction of 183 tons per year of hazardous air pollutants or an increase of 1,258 tons, according to analyses run by EPA.
The agency also said it reviewed the operating permits of 69 sources that have reclassified since EPA issued its policy memo in 2018. All but one continued to operate pollution controls as when they were major sources, though EPA admitted one source will not continue its compliance methods and thus may increase emissions.
Still to come: The rule avoided finalizing proposed amendments that could change how to calculate a source’s “potential to emit” pollutants. EPA will address that “in a separate final action at a later date,” the final rule said.
Reaction: Carol Browner, who was EPA administrator when the OIAI policy was issued 25 years ago, condemned the rule for rescinding public health protections, especially during the coronavirus pandemic. “This is a lawless action that will undoubtedly increase carcinogens and other deadly pollution in our air,” she said. “It’s another attack on the vulnerable populations, especially communities of color, that tend to be located near these pollution sources and will be forced to ingest these toxic substances.”
