Bloomberg Law
June 25, 2019, 2:18 PMUpdated: June 25, 2019, 11:29 PM

EPA Announces Reversal of Decades-Old Air Toxics Policy (2)

Amena H. Saiyid
Amena H. Saiyid

The EPA is reversing a 24-year-old air policy that would allow power plants, refineries and other industrial sources to avoid stringent controls for toxic air pollution, it announced June 25.

The White House Office of Management and Budget this week completed its review of an EPA proposed rule (RIN: 2060-AM75) to reverse the agency’s “once-in, always in” toxic air policy. That policy says power plants, refineries, and other industrial sources of toxic air pollution subject to strict “major” source air toxics controls must always meet those limits, even if they cut emissions below a Clean Air Act mandated threshold.

“‘Once in, always in’ policies discourage facilities from deploying the latest pollution control technologies or modernizing in ways that increase efficiency and reduce emissions,” EPA Administrator Andrew Wheeler said in a statement June 25. “Today’s proposal would remove a major regulatory burden and incentivize investments in technologies that improve air quality and public health.”

EPA will accept public comment for 60 days after the plan is published in the Federal Register. The agency is expected to finalize the rule at a later date.

‘Clear Reading of the Statute’

Under federal law, toxic air pollution-control requirements kick in for large industrial facilities that emit at least 10 tons per year of a single hazardous pollutant, or 25 tons of two or more air toxics. Facilities emitting below that limit don’t have to meet the most stringent pollution control requirements.

The EPA’s proposal builds on a January 2018 memo from Bill Wehrum, the Environmental Protection Agency’s assistant administrator for air.

“This action is based on a clear reading of the statute that is in line with EPA’s guidance for other provisions of the Clean Air Act,” Wehrum said in the agency’s June 25 news release.

This proposal is backed by manufacturers, petroleum companies, and to a lesser extent, electric utilities.

“We are pleased that EPA is proposing a common sense regulation that would recognize sources that lower their emissions,” Howard Feldman, the American Petroleum Institute’s senior director of regulatory and scientific affairs, told Bloomberg Environment in an email.

‘Unlawful Policy’

Environmental groups, such as the Environmental Defense Fund (EDF), and some states including California oppose the revisions and have challenged the agency’s attempt to weaken pollution rules through guidance.

Environmental groups sued the EPA because it started implementing an unlawful policy without any pretense of following legally required procedures, “putting Americans’ health at risk from dangerous pollution in the process,” said Tomas Carbonell, EDF’s lead attorney and regulatory policy director.

“Today’s proposal does not change the basis of that suit. We believe EPA’s loophole for toxic air pollution is still unlawful, and we will continue to vigorously oppose it,” Carbonell said in an email.

Environmental engineers who have worked in the industrial sector see the EPA’s proposal as a positive step because it reduces that extra burden of emissions reporting. However, they don’t expect to see an increase in toxic air pollution as a consequence.

“Most companies that have have reached a position to reduce their toxic emissions below major source threshold are not going to turn around and start emitting more. They will maintain their controls,” Mark Peak, an independent environmental engineering consultant in Lake Mary, Fla., told Bloomberg Environment on the sidelines of the Air & Waste Management Association meeting in Quebec City.

Peak said any company that has reduced its emissions below the mandated threshold still has to show it is continuing to emit below that threshold.

(Updated with comments from Environmental Defense Fund, American Petroleum Institute and environmental engineer.)

To contact the reporter on this story: Amena H. Saiyid in Washington at

To contact the editors responsible for this story: Gregory Henderson at; Pamela Atkins at; Rob Tricchinelli at