From SLMA's Environmental Counsel at Kilpatrick Townsend:
On January 25, 2018, the U.S. EPA issued a memorandum indicating that it will be revising its long-term Clean Air Act policy commonly referred to as the "once in, always in" policy. The "once in, always in" policy was developed in 1995 and required that any source that was subject to "major source" standards for the control of hazardous air pollutants (HAPs), i.e., federal MACT standards applicable to sources with more than 25 tons per year of HAP emissions in total or 10 tons per year of any individual HAP, would always remain subject to those major source rules even if it reduced its emissions below the applicability thresholds. This policy prevented sources that controlled their HAP emissions below major source levels from reclassifying themselves as an "area source." Area sources are more likely to be able to avoid the Title V permitting program, including its cumbersome record-keeping and reporting requirements and its expensive and time-consuming applications and permit renewals.
In its recent memorandum, EPA explained that it now believes the former policy went beyond the requirements of the Clean Air Act. By ending the policy, EPA states that it hopes to reduce regulatory burdens on affected industries and states. EPA has also stated that it will soon issue a proposed rule soliciting public comment on what regulatory revisions, if any, are necessary to memorialize this policy change.
SLMA members that are currently subject to the Boiler MACT or other MACT standards, as well as those sources that may be subject to the PWCP MACT that is being developed now (Reminder that responses to EPA's information request for the PWCP MACT are due on February 9, 2018), should consider whether they may be in a position to benefit from the revocation of the "once in, always in" policy. Further information on this issue is available if needed.