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'Once In Always In' Guidance

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2.28.18

Does EPA’s Withdrawal of the ‘Once In Always In’ Policy Benefit Your Facility?

The recent withdrawal by the U.S. Environmental Protection Agency (EPA) of its “once in always in” policy will allow facilities that have historically been regulated as “major sources” of hazardous air pollutants to be reclassified as “area” sources if they have reduced their potential to emit to below major source thresholds. Companies that are no longer regulated as major sources could see significant cost savings.

Determining If You Qualify

As a result of the EPA change in policy on January 25, 2018, facilities that have historically been regulated as major sources of hazardous air pollutants (HAP) may avoid National Emission Standards for Hazardous Air Pollutants (NESHAP) regulation and may no longer be subjected to the major source maximum achievable control technology (MACT) standard. (Read our previous blog article.) 

Answering the following questions will help evaluate whether your facility may benefit from this policy change:

  • Is your facility currently regulated as a “major source” of HAP? (A major source is defined as “any stationary source or group of stationary sources located within a contiguous area and under common control that emits, or has the potential to emit, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants.”)
  • Is your facility subject to one of the NESHAPs previously identified by EPA as directly affected by this policy change?
  • Have you implemented an operational limit on your facility’s potential to emit HAP (i.e., restrictions on hours of operations or restrictions on production that are less than design capacity)?
  • Have you installed a physical limit on your facility’s potential to emit HAP (i.e., use of control equipment)?
  • Does that operational limit or physical limit reduce your facility’s potential to emit HAP to below the major source threshold?
  • Is continued use of that operational limit or physical limit enforceable (i.e., required by the terms of a construction or operating permit)?
  • Have you considered voluntarily implementing an operational or physical limit but determined that the “once in always in” policy limited your incentives to do so?

If you answered yes to any of these questions, EPA’s withdrawal of the “once in always in” policy may allow your facility to avoid NESHAP regulation going forward. 

What Next?

EPA’s withdrawal of the “once in always in” policy is effective immediately, and companies should act now to take advantage of the new policy. 

However, EPA has suggested that it may propose regulatory changes to clarify the NESHAP rules. This is not the first time EPA has proposed revisions; in 2007, EPA proposed regulatory language that can offer guidance to companies thinking through how they can benefit from the 2018 change.

Husch Blackwell can help evaluate your current permit obligations and strategize on a path forward to potentially reduce your future regulatory burdens.

Additional Resources

Contact Us

For more information on how withdrawal of the “once in always in” EPA policy may affect your business, contact Alison M. NelsonRobert F. Wilkinson, Amy L. WachsJason A. Flower, or another member of Husch Blackwell’s Environmental team.