On January 25, 2018, the EPA issued new guidance on a 1995 memo clarifying the initial stance on major and area sources. Now referred to as the “once in always in” rule, this memo set forth rules for the classification of major sources of hazardous air pollutants under section 112 of the Clean Air Act. The update now allows companies the ability to break away from the legal issues that arise for major sources—if they can prove they have reduced emissions to area source levels.

Background: “Once in, Always in”

Section 112 of the Clean Air Act Amendments of 1990 made significant changes for companies across the United States, creating new programs and expanding existing ones. In addition to adding 187 Hazardous Air Pollutants (HAPs), and setting standards for Maximum Available Control Technology (MACT), the Amendments to the Clean Air Act set forth definitions regarding major sources and area sources, and rules surrounding them.

Defining Major and Area Sources

Under this law, sources were considered as either major or area sources, based on their emissions or potential emissions. Under Section 112, “major sources(a)(1)” and “area sources(a)(2)” were defined as follows:

  • Major Source: 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 considering controls, in the aggregate, 10 tons per year (tpy) or more of any hazardous air pollutant or 25 tpy or more of any combination of hazardous air pollutants.
  • Area Source: Any stationary source of HAP’s that is not a major source.

Beyond this, Section 112(c) set forth industry-based categories in order to define MACT. While much of this regulation was welcomed and the industry approach did offer guidance and timing, a 1995 interpretation of the regulation set forth a rule that perpetually locked “major sources” as such.

The 1995 “Once in, Always In” Rule

On May 15, 1995, John S. Seitz, Director of Office of Air Quality Planning and Standards, issued a memorandum to clarify timing requirements, multiple category facilities, and more. One of the rule clarifications issued was to clarify, in essence, whether a major source could make changes to become an area source, thus creating the “once in, always in” rule.

The once in always in rule locked major sources as major sources forever, designed to prevent “backsliding” from MACT control levels. Key highlights from the memo:

  • Permanence of Major Source Classification: Major sources for HAPs on the “first compliance date” are required to comply permanently with the MACT standard to ensure that maximum achievable reductions in toxic emissions are achieved and maintained.
  • It Doesn’t Matter if You Reduce the Potential to Emit: The rule was put in place to prevent facilities from MACT control levels by obtaining potential-to- emit limits.

Problems with the 1995 Memo

The 1995 memo occurred when companies were still reacting to the newly passed Act. Control technologies were still being developed and manufacturing processes and technology were different than today. The memo, while signed with good intentions, and was an effective carrot for companies to reduce their potential to emit before the compliance date, but it was designed for 1995, not 2018.

The “once in, always in” interpretation failed to take into consideration process and production changes, and disincentivized technology implementations that would reduce potential to emit.

One such example of this was “Request for Termination of Applicability of Organic Liquid Distribution (OLD) MACT Standard at Pactiv Winchester Facility.” In the request, Pactiv eliminated the use of ethyl chloride, a HAP, from their process and requested to be removed from the OLD MACT. Even after changing their processes, they were still required to comply with a rule that no longer affected them.

Under this memo, a major source had no incentive to reduce its emissions or even attempt to get reclassified as an area source.

January 25, 2018: Reclassification of Major Sources as Area Sources […] Section 112

On January 25, 2018, EPA issued a guidance memorandum withdrawing the “once in always in” policy for the classification of major sources of hazardous air pollutants under section 112 of the Clean Air Act.  With the new guidance, sources of hazardous air pollutants previously classified as “major sources” may be reclassified as “area” sources at any time, provided the facility limits its potential to emit below major source thresholds.

Making the Move from Major Source to Area Source

While many may criticize this move, companies now have incentive to make changes that didn’t exist before. Prior to this update, there was no reason for a company classified as a major source to even try to make changes to reduce their potential to emit—they could just pay more money for permits.

Now, organizations have more reason to minimize emissions and reduce their environmental impact—money. By leveraging new technology and pollution mitigation techniques, companies can reduce their environmental impact while driving down compliance costs associated with being a major source.

All things considered, the rollback of the 1995 memo will bring about two things: A push by companies to reduce their potential to emit, and a reinvigorated focus by environmental groups, lawyers, and journalists to name and shame companies who only make temporary, gilded changes. Knowing this, it pays to reduce your emissions in any way possible—especially if you want to remove your organization from the major source list.

There are many ways to do this. From production limits to administrative limits to add on controls, there are many ways to avoid the Title V program, and the implementation of a modern and effective pollution control and abatement system is one such option. The CMM Group is your source for highly capable thermal and catalytic oxidizers and other pollution control equipment. Learn more in our guide to VOC Abatement and contact us for more information.

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