Changes Continue in EPA's Air Program

In late January, EPA issued a guidance memorandum related to major sources under § 112 of the Clean Air Act that will likely reduce participation in the program. The new guidance actually withdrew a previous guidance policy in which EPA took the position that, if a source emitting air pollutants under § 112 ever attains "major source" classification, it would always retain that classification. (EPA Reclassification Notice). This original once-in-always-in policy meant that a source would always remain classified as a major source even if subsequent changes in operations allowed it to reduce its emission of hazardous air pollutants below major source classification thresholds. The announced change in this guidance seems to merely reflect common sense when one considers the potential impact between competitors where one is initially classified as a major source and the other which always operated below major source emissions thresholds. Under once-in-always-in, the first facility was required to continue in that classification even though it may have modified its operations to reduce its emissions to levels below that of the competitor. The revised guidance would level the field for the two and also provide another incentive to reduce emissions.

This change in policy seems to continue a trend within the Administration of making changes to air emissions policies that have long been questioned as being illogical or unreasonable. For example, in December EPA Administrator Pruitt issued a new directive indicating that EPA will no longer second guess company estimates of future pollution levels under the New Source Review regulations before that company retrofits a plant. (Utility Dive: EPA to Drop Key New Source Review Provision). That change followed the Administration's action in October withdrawing the Clean Power Plan rule. (New York Times). At that time it was noted that the withdrawal may have been prompted as much by a different philosophy on statutory interpretation long advocated by Administrator Pruitt as opposed to a simple effort to reinvigorate the use of coal-fired power plants. And earlier, in March, the Administrator withdrew an request issued in the last days of the Obama administration seeking information from oil and gas companies regarding methane emissions in production fields. (Reuters).

While some, if not all, of these actions suggest a different sensibility and also a different philosophy with respect to the scope of EPA's authority, they do not appear to undercut the fundamental provisions of the Clean Air Act. They would not appear to affect the fundamental administration of the Act by EPA or by the states who are authorized to administer their own programs as long as they are consistent with EPA's. That said, it also does not appear likely that there will be a corresponding reduction in administrative costs. (December 2015 Survey Report of the National Associate of Clean Air Agencies). Funds for air regulatory programs generally come from assessments on emissions on a per-ton basis. Yet, air emissions have dropped significantly over the last 10 to 15 years. In Alabama for example, emissions from Title V have dropped about 50 percent. While the basis for fees is shrinking, the costs to operate and administer the program in the states continue to rise, at least due to inflation, and thus, it seems that fees can be expected to increase in most of the authorized states.

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