"Once In, Always In" Considerations Not Altered by 112(J) Amendments

Bernard Hawkins
Nelson, Mullins, Riley & Scarborough, L.L.P.
Bfh@nmrs.com

EPA's May 16, 1995, document setting forth its legal interpretation of how Congress intended the Maximum Achievable Control Technology (MACT) standards to be implemented remains the most recent statement of the agency's position on this topic. See "Potential to Emit for MACT Standards - Guidance on Timing Issues," John S. Seitz, May 16, 1995. This interpretation, which has come to be known as the "once in, always in" policy, was unchanged by the agency's recent revisions to the 40 CFR Part 63, Subpart B provisions addressing §112(j) of the Clean Air Act (CAA). See 67 Fed. Reg. 16582 (Apr. 5, 2002). The "once in, always in" policy provides EPA's position on when a source is irrevocably committed to complying with MACT standard requirements.

The "once in, always in" policy provides that a major source of hazardous air pollutant (HAP) emissions is irrevocably committed to complying with the requirements of a given MACT standard on the "first compliance date" for that standard. This date was defined under the 1995 policy memo as "the first date a source must comply with an emission limitation or other substantive regulatory requirement (i.e., leak detection and repair programs, work practice measures, housekeeping measures, etc. . . . , but not a notice requirement) in the applicable MACT standard." After the "first compliance date," the source cannot reduce HAP emissions to below the major source threshold to avoid the requirements of a MACT standard. Conversely, until the "first compliance date," the source may take enforceable emission limits, and reduce its HAP emissions below the major source threshold, thereby avoiding MACT standard requirements. This is also true where multiple MACT standards might apply to a facility over a staggered period. As a result, even if the facility was a major source at the "first compliance date" for a given MACT, the source can lower its HAP emissions to a level below the major source thresholds prior to the "first compliance date" for a second MACT standard and avoid the requirements of that standard (i.e., even though the source will continue to be subject to the requirements of the first MACT).

Under §112(j) of the Clean Air Act (also referred to as the "hammer provision"), a source must propose its own MACT standard if EPA misses the statutory deadline for issuing that MACT by more than eighteen months. The source submits its proposed MACT standard to the state, and the state ultimately determines a MACT for the source on a case-by-case basis. The procedures for this process are set out at 40 CFR Part 63, Subpart B. These procedures were amended at 67 Fed. Reg. 16582 (Apr. 5, 2002).

Under the 112(j) procedural amendments, a covered source must submit a Part 1 application by May 15, 2002, providing basic information concerning the source and the MACT(s) to which it will be subject. By May 15, 2004, the source is required to submit a Part 2 application proposing a MACT standard for the source. It is EPA's goal to have all MACT standards proposed prior to this deadline so that states are not required to create state-by-state MACT standards. This process is discussed further by other articles in this newsletter.

With reference to the "once in, always in" policy, a question arose as to whether any part of the amended 112(j) process - including the requirements to submit Part 1 and Part 2 applications, or the requirement to amend a Title V permit to address the 112(j) determination - would impact the trigger point for the application of the "once in, always in" interpretation. EPA has indicated that the 112(j) procedures do not impact the application of this policy. Under the 112(j) process, a source is not committed to compliance with a case-by-case MACT determination until the "first compliance date" for that standard. Stated another way, a source is not irrevocably bound by a case-by-case MACT determination until the source is required to comply with a substantive requirement under that determination. The policy is not triggered by a requirement to submit a Part 1 or Part 2 application nor by a requirement to amend the Title V permit to include the outcome of the case-by-case determination.

A special note of thanks to Steve Fruh and Rick Vetter of EPA who provided valuable input as a peer review of the above-discussion.