A view of clouds from above the cloud line; blue skies.

Clean Air Act Implementation

Once In, Always In” Policy

In 1995, the Envi­ron­men­tal Pro­tec­tion Agency (EPA) adopt­ed a pol­i­cy known as the Once In, Always In” pol­i­cy, which requires that once a facil­i­ty is clas­si­fied as a major source of haz­ardous air pol­lu­tants (HAPs) it must keep tox­i­cs pol­lu­tion con­trols in place, even if the facil­i­ty lat­er reduces emis­sions below major source thresh­olds. (Major sources are those that emit or have the poten­tial to emit 10 tons per year or more of any sin­gle haz­ardous air pol­lu­tant or 25 tons per year or more of any com­bi­na­tion of haz­ardous air pollutants.)

2017-2021

  • Jan­u­ary 2018

    In Jan­u­ary 2018, the EPA released a memo that with­drew the Once In, Always In” pol­i­cy. Sources of haz­ardous air pol­lu­tants pre­vi­ous­ly clas­si­fied as major sources could now be reclas­si­fied as area sources when a facil­i­ty lim­its its poten­tial to emit below major source thresh­olds. A facil­i­ty that is reclas­si­fied as an area source could then switch off its pol­lu­tion con­trol devices and release more tox­ic pol­lu­tants up to the major source thresh­old amount. This pol­i­cy change then cre­ates the poten­tial for sig­nif­i­cant increas­es in emis­sions of tox­ic pol­lu­tants, espe­cial­ly in com­mu­ni­ties locat­ed near major source facilities.

  • April 2018

    In April 2018, Cal­i­for­nia Attor­ney Gen­er­al Xavier Becer­ra filed suit against the EPA for with­draw­ing the Once In, Always In” pol­i­cy. The suit request­ed that the D.C. Cir­cuit Court of Appeals inval­i­date the EPA’s repeal of the pol­i­cy because it con­tra­vened Congress’s intent in adopt­ing the Clean Air Act and was an arbi­trary and capri­cious rever­sal of the agency’s long-stand­ing pol­i­cy. EPA urged the court to dis­miss California’s peti­tion on grounds that the Jan­u­ary 2018 memo is not a final agency action sub­ject to judi­cial review.

  • June 2019

    In June 2019, the EPA released a pro­pos­al to reverse its near­ly 25-year old Once In, Always In” pol­i­cy. The pro­posed rule would allow a major source to reclas­si­fy as an area source after it takes action to reduce its poten­tial to emit HAPs below major source thresh­olds, there­by open­ing the oppor­tu­ni­ty for back­slid­ing on tox­i­cs emissions.

  • August 2019

    In August 2019, the D.C. Cir­cuit Court ruled that the Jan­u­ary 2018 memo was not review­able because it is not a final agency action.

  • Octo­ber 2019

    In Octo­ber 2019, Cal­i­for­nia Attor­ney Gen­er­al Becer­ra filed a peti­tion with the D.C. Cir­cuit for a pan­el rehear­ing or a rehear­ing en banc of the August 2019 deci­sion. In Jan­u­ary 2020, the D.C. Cir­cuit declined to recon­sid­er their deci­sion. Cir­cuit Judge Judith Rogers dis­sent­ed from the denial, assert­ing that EPA’s memo was a final agency action that should be sub­ject to judi­cial review because it marked the con­sum­ma­tion of EPA’s deci­sion­mak­ing process and cre­ates a new legal right by allow­ing major sources of HAPs to reclas­si­fy as area sources.

  • Octo­ber 2020

    In Octo­ber 2020, the EPA final­ized its replace­ment rule for the Once In, Always In” pol­i­cy, cod­i­fy­ing its Jan­u­ary 2018 memo. Cal­i­for­nia Attor­ney Gen­er­al Becer­ra released a state­ment crit­i­ciz­ing the EPA’s deci­sion as a slap in the face to neigh­bor­hoods already dis­pro­por­tion­ate­ly bur­dened by air pol­lu­tion,” par­tic­u­lar­ly in the midst of a res­pi­ra­to­ry pan­dem­ic. In Jan­u­ary 2021, just before the Trump admin­is­tra­tion wound down, Cal­i­for­nia Attor­ney Gen­er­al Becer­ra led a coali­tion of 13 states in fil­ing a peti­tion for review chal­leng­ing the Octo­ber 2020 rule that reversed the Once In, Always In” pol­i­cy. The case was in abeyance as of June 2021.

New Source Review

The EPA’s New Source Review (NSR) pro­gram is admin­is­tered under the Clean Air Act. The pro­gram requires own­ers or oper­a­tors of indus­tri­al facil­i­ties to obtain NSR per­mits lim­it­ing air emis­sions before begin­ning con­struc­tion of major mod­i­fi­ca­tions to exist­ing major sta­tion­ary sources that would increase emis­sions sig­nif­i­cant­ly. Under cur­rent EPA reg­u­la­tions, the agency uses a two-step process to deter­mine whether a project at an exist­ing major sta­tion­ary source trig­gers the require­ment to obtain an NSR permit. 

2017-2021

  • August 2019

    In August 2019, the EPA released a pro­posed rule that would weak­en the NSR pro­gram. At step one of the two-step process, sources would be allowed to con­sid­er emis­sion decreas­es from a mod­i­fi­ca­tion that the source deems to be with­in the scope of a project involv­ing mod­i­fi­ca­tions that increase emis­sions. In effect, sources would be empow­ered to con­sid­er the net emis­sions impact of a pro­posed mod­i­fi­ca­tion at step one, when the net emis­sions impact had tra­di­tion­al­ly been cal­cu­lat­ed at step two. The pro­pos­al would allow many sources to self-cer­ti­fy at step one that the mod­i­fi­ca­tion need not pro­ceed to step two, avoid­ing the need to obtain a NSR permit.

  • Octo­ber 2019

    In Octo­ber 2019, New Jer­sey Attor­ney Gen­er­al Gur­bir Gre­w­al led a coali­tion of 10 attor­neys gen­er­al in fill­ing com­ments in oppo­si­tion to the pro­posed rule. The com­ments not­ed that while the pro­pos­al may reduce emis­sion con­trol require­ments for indus­try sources, that is not the goal of the NSR pro­gram. Instead, the goal was to help attain and main­tain ambi­ent air qual­i­ty stan­dards by requir­ing source own­ers to apply emis­sion con­trol tech­nol­o­gy at the time of mod­i­fi­ca­tion. Because the pro­posed rule would increase air pol­lu­tion and was con­trary to the Clean Air Act, the attor­neys gen­er­al urged the EPA to aban­don the proposal.

  • Octo­ber 2020

    A year lat­er, in Octo­ber 2020, the EPA, ignor­ing the con­cerns of Attor­ney Gen­er­al Gre­w­al and the rest of the coali­tion, issued a final rule weak­en­ing the NSR pro­gram. Dur­ing step one of the two-step process, sources will be allowed to con­sid­er emis­sion decreas­es from a mod­i­fi­ca­tion at a source. In Jan­u­ary 2021, at the end of the Trump admin­is­tra­tion, New Jer­sey Attor­ney Gen­er­al Gre­w­al led a coali­tion of eight attor­neys gen­er­al in fil­ing a peti­tion for review chal­leng­ing the Octo­ber 2020 rule weak­en­ing the NSR pro­gram. The case was in abeyance as of June 2021.