U.S. Court of Appeals for the District of Columbia Circuit Upholds EPA’s Attempt to Rescind Once In, Always In Policy

On August 20, 2019, U.S. Court of Appeals for the District of Columbia Circuit upheld EPA’s attempt to repeal the Once In, Always In Policy (“OIAI”) because the guidance document did not impose any obligations, prohibitions, or restrictions, but did not rule on the substance of the guidance

In 2018, William L. Wehrum, Assistant Administrator for the Environmental Protection Agency’s (“EPA”) Office of Air and Radiation, issued a memorandum (“Wehrum Memo”) to all Regional Air Division Directors that declared that major sources can be reclassified to an area source at any time after it limits its potential to emit to below the major source threshold.

The 2018 Wehrum Memo updated federal policy around major emitters of toxic air pollutants. EPA’s former OIAI policy detailed in a 1995 memorandum addressed the issue of when a source could be classified as an area source of hazardous air pollutants. The OIAI policy gave sites until the first compliance date of a new Maximum Available Control Technology (“MACT”) standard to avoid classification as a major source of hazardous air pollutants. Once the compliance date passed, a major source could not be reclassified as an area source and would always be subject to the MACT standard.

In this case, the court did not overturn EPA’s plan to end the OIAI policy because it concluded that the Wehrum Memo depicted the agency’s decision-making process that forecasted EPA’s position as to § 112 of the Clean Air Act (“Act” or “CAA). The court did not provide an opinion on the merits of the agency’s interpretation of § 112. Thus, not only can EPA and regulated entities not rely on the memo in permitting proceedings, if a state permitting agency refuses to comply with it, the agency could not be penalized under the Clean Air Act or EPA regulations.

Even though the Wehrum Memo has been upheld, the EPA has also released a proposed rule to codify the memo.

Source:

Cal. Cmtys. Against Toxics v. EPA, Nos. 18-1085, 18-1095, 18-1096 (D.C. Cir. Aug. 20, 2019).