November 18, 2018

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EPA Ends 20 Year “Once In, Always In” Policy for MACT Standards: May Effect Enforcement, New Permits

In a major change in air permitting policy, on January 25, 2018 U.S. EPA reversed its longstanding “once in, always in” policy governing what sources are subject to major source regulations for the emissions of  air toxics under Section 112 of the Clean Air Act.  Under a 1995 policy memorandum issued by the agency, sources that had the potential to emit above the major source thresholds at the time a standard applied to a particular source category were “always in,” and had to forever comply with that standard—even if the source subsequently installed emission control equipment or switched to non-hazardous air pollutant substances, and took enforceable limits to keep emissions below those limits. The January 25 memorandum reverses that policy, and authorizes the reclassification of a major source to an area source at such time as the source takes enforceable limits on potential to emit below the major source thresholds.

This change will likely lead to numerous sources seeking reclassification from “major” to “area” source status, in order to take advantage of more streamlined recordkeeping and reporting requirements applicable to such facilities.  It may also have implications for some enforcement cases currently being pursued by the agency. States have incorporated the federal major source requirements into air permits, and as such, the requirements remain in effect until the permit is modified.  Facilities should review their air permits and work with state agencies to remove the unnecessary and burdensome requirements.

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About this Author

Jennifer A. Van Wie, Foley Lardner, Federal Regulation Attorney, environmental business lawyer
Special Counsel

Jennifer Van Wie is a special counsel and an environmental business lawyer with Foley & Lardner LLP, where she advises clients on state and federal environmental regulations and laws concerning air, water, and land pollution, including matters specific to the Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act (RCRA), and Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).Ms. Van Wie has focused her practice exclusively on environmental issues for over 13 years.

Prior to joining Foley, Ms. Van...

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Mark A. Thimke, Foley Lardner, Environmental Lawyer,
Partner

Mark A. Thimke is a partner and environmental lawyer with Foley & Lardner LLP. His practice encompasses all major environmental programs, including hazardous waste, Superfund, the Clean Air Act, air toxics, and wastewater. Mr. Thimke has been involved in Superfund matters ranging from landfills, municipal well fields, and the investigation and cleanup of river and harbor sediment remediation areas, representation of dischargers on issues involving water toxics limitations, and the development of a detailed anti-degradation policy, and work on several major air enforcement actions. He is a member of the firm’s Environmental Regulation Practice and the Energy Industry Team. 

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