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EPA About to Reverse Clinton-Era Toxic Air Pollution Policy

Sept. 22, 2020, 10:45 PM

Power plants, refineries, and other industrial sources may now be able to avoid stringent pollution controls if the toxic air particles they emit fall below a mandated legal threshold.

The Environmental Protection Agency is finalizing on Thursday its rule (RIN: 2060-AM75) that it will no longer enforce the “once-in, always in” toxic air policy that bound chemical plants, refineries, and other industrial sources to a lifetime of pollution controls based on estimated emissions, a senior agency official confirmed Tuesday. .

The decades-old policy required refineries, pulp mills and and other sources of toxic air pollution to implement strict “major” pollution controls, even if their emissions of toxic air pollutants fell below mandated Clean Air Act thresholds. The thresholds are 10 tons for a single hazardous pollutant, and 25 tons for two or more pollutants.

“This rule will encourage facilities to pursue innovations in pollution-reduction technologies and relieve regulatory requirements intended for much larger emitters,” the EPA told Bloomberg Law.

The rule concludes that EPA has no authority under the plain language of the Clean Air Act to limit when a facility may be determined to be an area source.

“Rather, facilities may be reclassified as area sources upon their taking an enforceable limit on their potential to emit hazardous air pollutants that brings their level of emissions below the major source thresholds,” the agency said.

Maximum Controls

Sources considered major are required to install the maximum level of pollution controls, while so-called “minor” sources need fewer controls.

The EPA rule builds on a January 2018 memo from Bill Wehrum, then EPA’s assistant administrator for air and radiation.

By removing unnecessary monitoring, recordkeeping and reporting associated with being a major source, the EPA said this rule will relieve “unnecessary compliance and financial burdens” from regulated companies, while encouraging other sources to reduce emissions.

Once implemented, the EPA estimates a potential cumulative savings of $16.1 million in the first year and $90.6 million (in 2017 dollars) in following years.

Environmental Challenge

Manufacturers, petroleum companies, and pulp mills affected by the rule support the EPA’s reversal. Electric power utilities, notably those operating oil- and coal-fired power plants, aren’t affected by this rule because they’re regulated under mercury and air toxic standards from 2012.

California and environmental groups such as the Sierra Club, Environmental Defense Fund, and the Environmental Integrity Project challenged the EPA when it tried enforcing a reversal of the toxic air pollution policy through guidance. But the U.S. Court of Appeals for the District of Columbia Circuit in January reaffirmed its decision to dismiss the lawsuit because the guidance didn’t constitute a legally binding, final agency action.

California said the EPA’s reversal would allow industrial facilities to emit just under the mandated thresholds and thus avoid pollution controls. The once-in, always-in policy “ensures that all hazardous air pollutants sources ‘at least clean up their emission to the level that their best performing peers have shown can be achieved,’” the state said during oral arguments.

EPA’s own analysis of the proposed rule projects that 3,912 industrial facilities nationwide could ultimately take advantage of what the environmental groups are calling the air toxics loophole.

Sierra Club attorney Sanjay Narayan warned that the EPA should expect a challenge if it finalizes its proposal.

“If the final rule does not add anything significant to what EPA placed in the proposed rule” and the preceding Wehrum memo, “we are likely to challenge them in court,” he said.

Debra Jezouit, a Clean Air Act attorney with Baker Botts LLP, said the rule is needed to give industry flexibility for permitting to undertake projects, but “there’s no question that it will be appealed.”

The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bloombergindustry.com

To contact the editors responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com; Rebecca Baker at rbaker@bloombergindustry.com

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