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Time to Toss It Out? The “Once In, Always In” Policy for “Major Source” Hazardous Air Pollutant Standards

July 2017

Citation: 47 ELR 10570

Issue: 7

Author: Brian C. S. Freeman

EPA's recent call for regulatory reform suggestions offers a good opportunity for ending a long-standing regulatory overreach: EPA’s “once in, always in” policy for standards applicable to a major source of hazardous air pollutants under the Clean Air Act. The policy asserts that if a facility ever had potential hazardous air pollutant emissions above levels that trigger a major source control standard, the facility must comply with that standard permanently, even where the facility has since reduced its potential emissions below the trigger levels. The result is needless compliance burden and expense, transactions complicated or threatened by discovery of a once in, always in situation, and unwarranted enforcement actions and penalties. This Comment discusses the legal and policy weaknesses of the policy, as well as the practical considerations that support withdrawing it.

Brian C. S. Freeman is a Senior Associate at Robinson+Cole.

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