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Comments to EPA on the Proposal to Limit Emissions from Reclassified Major Sources of Air Toxics

Under Section 112 of the Clean Air Act (CAA), EPA must establish emissions standards to control and reduce hazardous air pollution from any “major source” that emits above the designated threshold. For decades, EPA worked under a policy that facilities which are “major sources” at the first compliance date for the applicable standard must comply permanently with the requirements for a major source. This position became known as the “Once-in, Always-in” (OIAI) Policy. In November 2020, EPA finalized a rule withdrawing the OIAI Policy and attempting to remove the requirement that a “potential to emit” limitation taken by a source to control its emissions be federally enforceable (2020 Rule). The 2020 Rule allows major sources of toxic air pollution to reclassify as area sources, which are subject to less stringent or no emission control requirements. The 2020 Rule creates the potential for very large increases in toxic air pollution.

In September 2023, EPA proposed new safeguards to prevent increased emissions from sources that reclassify and restores federal enforceability requirements for potential to emit limits (Proposed Rule). We submitted comments on the analysis underlying the proposed new safeguards.

In our comment letter, we made the following recommendations: 

  • EPA should further assess the costs and benefits of the Proposed Rule in accordance with relevant Executive Orders and guidance from the Office of Management & Budget (OMB). To the extent that the agency relies on any findings in the 2020 Rule’s Regulatory Impact Analysis, EPA should acknowledge and account for the flawed assumptions in the 2020 RIA. EPA should still do further analysis of costs and benefits even if there are uncertainties about which sources will reclassify and which reclassified sources will increase their emissions. 
  • EPA should better characterize the benefits expected under the Proposed Rule from avoided hazardous air pollutant emissions. 
  • EPA should assess the distributional effects of the Proposed Rule.
  • EPA should acknowledge any anticipated reductions in cost savings for regulated entities under the Proposed Rule, relative to the baseline of the 2020 Rule, even if they are minimal. 
  • EPA should compare the Proposed Rule with a less stringent alternative and more stringent alternative. 
  • EPA should reach an explicit conclusion as to whether the Proposed Rule’s benefits will exceed its costs.