On September 22, 2023, the EPA proposed to strengthen a 2020 Clean Air Act (CAA) rule by ensuring industrial facilities that emit large amounts of hazardous air pollutants (HAPs) can’t increase emissions when reclassifying from a “major source” of emissions to an “area source.” The proposed amendments to the “Reclassification of Major Sources as Area Sources Under Section 112 of the [CAA]” rule would require those sources that choose to reclassify from major source status to area source status under the National Emissions Standards for Hazardous Air Pollutants (NESHAP) to establish federally enforceable permit conditions “that will better protect public health from hazardous air pollution,” states an Agency news release.

“[The] EPA is proposing additional safeguards to address emissions of hazardous air pollutants from major industrial sources,” said Joseph Goffman, principal deputy assistant administrator for air and radiation, in the Agency news release. “Ensuring facilities do not increase emissions of air toxics after being reclassified will help protect communities from air toxics. This proposal will continue to allow facilities to innovate and adopt new ways of reducing emissions of air toxics while maintaining emission reductions after reclassification.”

This proposed rule will strengthen the 2020 rule. As proposed, sources reclassifying from major source to area source status under the NESHAP program will have to satisfy the following:

• Any permit limitations taken to reclassify from a major source of HAP to an area source of HAP must be federally enforceable.
• Any such permit limitations must contain safeguards to prevent emissions increases after reclassification beyond the applicable major source NESHAP requirements at time of reclassification.
• Reclassification will only become effective once a permit has been issued containing enforceable conditions and electronic notification has been submitted to the EPA.

This would provide a level playing field for continued enforcement of limits taken to reclassify and an additional layer of compliance assurance. The proposed requirements would apply to all sources that choose to reclassify, including any sources that have reclassified since January 25, 2018.

In 1995, the EPA issued the “Once In, Always In” Policy and determined that any facility subject to major source HAP emissions standards would always remain subject to those standards. The policy was designed to achieve lasting emissions reductions from major sources and ensure continued compliance assurance once air pollution standards for major sources were in place.

Under the Trump administration EPA, a rule was issued that allowed a major source of HAP to reclassify as an area source at any time after agreeing to limit emissions below the major source thresholds.

“In response to President Biden’s Executive Order 13990, ‘Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,’ EPA reviewed the 2020 rule and determined that there were actions we could take to protect against HAP emissions increases,” adds the Agency news release.  “This proposal would address those concerns and prevent increases of emissions of air toxics after reclassification.”

Comments will be accepted on the proposed rule until November 13, 2023, on the Federal eRulemaking platform under Docket #: EPA–HQ–OAR–2023–0330.