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January 31, 2008Client Alert

Congress Rebuffs EPA Effort to Replace “Once In Always In” Air Permitting Policy

Those who harbored the hope that the United States Environmental Protection Agency (EPA) would be successful in its efforts to revise its Once In Always In Policy for major air sources suffered a setback when President Bush signed the “Consolidated Appropriations Act, 2008" on December 26, 2007. The Act contained the following prohibitory rider, introduced by Representative Eddie Bernice Johnson of Texas:

Section 432: None of the funds made available under this Act may be used to promulgate or implement the Environmental Protection Agency proposed regulations published in the Federal Register on January 3, 2007 (72 Fed. Reg. 69)."

The Once In Always In (OIAI) Policy was articulated in a 1995 EPA memo from John Seitz, Director, Office of Air Quality Planning and Standards to EPA Regional Air Division Directors and has been followed by EPA and state air enforcement agencies ever since. The essence of the Policy is to prevent a source from becoming a "minor" source for purposes of compliance with a Maximum Achievable Control Technology (MACT) standard and then "backsliding" to an emission level just below the "major" source threshold. To avoid that result, the OIAI Policy requires that a facility must be a minor source before the first substantive compliance date of the applicable MACT standard. If it is not, and thus qualifies as a major source on that compliance date, under the OIAI Policy the source will forever remain a major source for purposes of that MACT standard even if it reduces its potential to emit to levels well below the major source threshold.

On January 3, 2007 (72 Fed. Reg. 69) EPA proposed to replace the OIAI Policy through amendments to the General Provisions of the national emission standards for hazardous air pollutants (NESHAP). The amendments would "provide that a major source may become an area [a/k/a/ minor] source at any time by limiting its potential to emit hazardous air pollutants (HAP) to below the major source thresholds of 10 tons per year (tpy) of any single HAP or 25 tpy of any combination of HAP. Thus, under the proposed amendments, a major source can become an area source at any time, including after the first substantive compliance date of an applicable MACT standard so long as it limits its potential to emit to below the major source thresholds." 72 Fed. Reg. 69.

In support of the rider, Representative Johnson contended that "Without a once in, always in policy, these facilities could 'backslide' from MACT control levels by obtaining potential-to-emit limits, escaping applicability of the MACT standard, and increasing emissions to the major source threshold. Thus, the maximum achievable emission reductions that Congress mandated from major sources would not be achieved." Congressional Record-House H7146, June 26, 2007.

Speaking against Representative Johnson’s amendment, Kansas Representative Tiahrt argued that EPA’s proposed amendments were equivalent to a carrot, rather than a stick approach to obtaining air emission reductions: “...the companies have no incentives under the...policy to reduce pollution, because once designated as a major source, they are always designated as a major source. As a result, companies are stuck at certain levels of pollution and not provided with any incentive, no carrot whatsoever to lower their emissions below that level.” Congressional Record-House H7147-48, June 26, 2007.

EPA received significant and varied public comment in response to the proposed amendments. Many industry commentators supported the changes as additional incentives to reduce emissions while coming into compliance with applicable MACT standards. While the rider only affects EPA’s 2008 appropriations, it remains to be seen whether EPA can garner either the appetite or the backing to tackle this issue again in the future.

For more information, please contact Linda Bochert at 608.283.2271, or lhbochert@michaelbest.com.

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