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EPA Seeks to Peel Back Regs Overseeing ‘Major Polluters’

As part of the Trump administration’s to peel back environmental regulations that it has deemed overly burdensome, it is now going after the “once in, always in” policy that is part of the Clean Air Act and that deals with more than 200 pollutants such as mercury, arsenic and lead.

The law was first established in 1995, which set the standards for major polluters for power plants and industrial facilities. Specifically, it deals with those businesses that emit more than 10 tons of any one pollutant regulated under the Clean Air Act, or more than 25 tons of any group of pollutants that must use best-available technologies. Sources with emissions below this threshold are classified as “area sources,” EPA said, noting that different control standards apply to the source depending on whether it is classified as a “major source” or an “area source.”

Once a plant or facility exceeds those upper limits, it is then considered to have permanently done so and must therefore always employ best-available technologies, or technically speaking Maximum Available Control Technology. The current EPA wants to end the practice of permanently classifying a business as over the threshold — or “once-in, always in.” It reasons that if a industrial unit can reduce its pollution levels to below the thresholds, then it can be reclassified as an “area source” that has less stringent standards. That will make those businesses more competitive and able to hire more workers. 

“Nothing in the structure of the Clean Air Act counsels against the plain language reading of the statute to allow major sources to become area sources after an applicable compliance date …,” William Wehrum, assistant administrator of EPA in the Regional Air Division writes in a memo dated January 25. He goes on to say that EPA has no statutory authority under the Clean Act to permanently classify a business a major polluter. That is because production processes can change, which would permanently reduce hazardous air pollutants.

The assistant director adds that Congress created an “artificial” timeline and that businesses need “meaningful incentives to undertake such projects” — or ones that add value by employing best-available technologies.

According to EPA, it had received multiple requests from both states and industry to rescind the once-in, always in provision.  But two US senators from prominent committees ignited the discussion after wring to the EPA and asking it to do away with the rule. They said that businesses remained stuck inside the statute even if they improved operations and that this hurt their ability to compete. They also said it would not lead to greater emissions.

“The EPA’s decision today is consistent with President Trump’s agenda to keep America’s air clean and our economy growing,” Senator John Barrasso of Wyoming said in a statement. “Withdrawal of this policy means manufacturers, oil and gas operations, and other types of industrial facilities will have greater incentive to reduce emissions. Now these companies can help protect the environment without wasting time and money on unnecessary red tape.”

Environmentalists counter that this move is the latest by the Trump administration to remove meaningful rules meant to protect the public’s health and well-being.

“This is among the most dangerous actions that the Trump EPA has taken yet against public health. Rolling back longstanding protections to allow the greatest increase in hazardous air pollutants in our nation’s history is unconscionable,” John Walke, clean air director at the Natural Resources Defense Council said in a prepared statement.

“This move drastically weakens protective limits on air pollutants like arsenic, lead, mercury and other toxins that cause cancer, brain damage, infertility, developmental problems and even death,” Walke continued. “And those harmed most would be nearby communities already suffering a legacy of pollution. NRDC will fight this terrible decision to unleash toxic pollutants with every available tool.”


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