“Once In, Always In” Now Out: How the EPA is Reducing Regulations on Hazardous Air Pollutant Emitters
By Michelle West, Staff Contributor
Almost 95% of Americans breathe unsafe levels of hazardous air pollutants also known as air toxics. Health effects associated with the inhalation of these air toxics include damage to reproductive functions, birth defects, respiratory illness, and cancer. Because there is no safe level of exposure to these toxics, the Clean Air Act (CAA) requires an ample margin of safety from the discharge of these toxics to protect public health and the environment. Hazardous air pollutants are emitted from mobile sources, such as cars, stationary sources, such as factories, and indoor sources, like cleaning solvents.
Section 112 of the CAA classifies stationary sources into major sources or area sources based on the amount of the source’s actual or potential hazardous emissions. Major sources are required to install technology that will create the maximum degree of emissions reduction deemed available by the EPA, known as the MACT standard. The EPA may require the same technology for area sources or it may allow area sources to install technology that reflects the less stringent generally available control technology (GACT) standard, based on the economic impact on the industry and the commercial availability of the technology.
For over two decades, the EPA interpreted the language and structure of section 112 to mean that once a source meets its first compliance date as a major source, it will always be regulated as a major source, even if the source reduces its emissions below the classification threshold. This “once in, always in” policy provided sufficient flexibility for the industry when it allowed a source to reduce pollution and downgrade in classification until the first compliance date. Yet, the interpretation was also meant to prevent sources from evading regulation by reducing the potential to emit to below the threshold level when the MACT standard would, in fact, reduce a major source’s emission levels to substantially below the threshold.
Last month, the Trump administration announced the statute’s plain language compelled the conclusion that a major source becomes an area source whenever it reduces its potential to emit air toxics below the major source threshold. According to the EPA, because the major and area source definitions were expressly and unambiguously described in terms of tons of hazardous air pollutants emitted, it could not read a temporal limitation into the otherwise express definition as previous administrations had done.
The EPA’s new policy under section 112 will likely result in a remand, if and when it is challenged, by the D.C. Circuit Court due to the EPA’s unexplained inconsistencies in the new reading of the agency’s scope of authority and the underlying factors of the original policy as required when announcing a policy change. Administrative law requires that an agency supply a good reason for a policy revision, explain any inconsistencies with the previous policy, and address the previous policy’s underlying facts, including how facts have been interpreted differently to support a new policy. The court considers the basis of the original policy, including any statutory factors as well as well as any facts upon which the previous policy relied, when determining whether the new policy provides an adequate explanation. The EPA reasoned that the new policy would harness market incentives to implement voluntary pollution controls. However, the EPA has not explained how providing market incentives to reduce the potential to emit will achieve the same pollution reduction as the MACT standard and provide equal protection for public health and the environment. The new policy fails to abide by this administrative requirement when it relies solely on an alternate reading of the scope of the agency’s authority and the inclusion of market-based incentives.
Additionally, if an agency reaches a particular result based on an interpretation of the statutory language that compels such a result, the court may remand the decision to the agency if it decides such a result was not compelled by the language. Courts focus on an agency’s failure to provide an explanation for rejecting alternatives allowed by the statute, rather than on whether or not the agency reached the proper interpretation. In a recent case, NextEra v. FERC, the D.C. Circuit Court remanded the Federal Energy Regulatory Commission’s ruling because it found the Commission’s new interpretation of the provision rested on a simple logical flaw when it read the language as unambiguous so as to foreclose any other options when the court did not. Similarly, the EPA has read section 112 of the Clean Air Act as unambiguous so as to foreclose any other interpretation of when a source may be considered an “area source.”
The court will likely remand the EPA’s recent policy change when the agency fails to explain inconsistencies with the previous policy and relies on an alternative interpretation of the scope of the agency’s authority based on express, unambiguous language.
 These are pollutants known or suspected to cause cancer or other serious health effects. See Envtl. Prot. Agency, Hazardous Air Pollutants, https://www.epa.gov/haps/what-are-hazardous-air-pollutants (last updated Feb. 9, 2017).
 See U.S. Gov’t Accountability Office, GAO-06-669, EPA Should Improve the Management of its Air Toxics Program at 1 (2006); Rhonda L. Ross & Tammy Asher Brown, A Fatal Flaw in the Clean Air Act: How the Clean Air Act Fails to Adequately Regulate Ambient Concentrations of Hazardous Air Pollutants, 32 Utah Envtl. L. Rev. 55, 55-56 (2012).
 Although the primary standard is technology-based, the EPA is required to implement secondary regulations if a residual risk to public health remains eight years after the implementation of the regulation of the particular air toxic. See 42 U.S.C. § 7412(f)(2)(A) (2018).
 Stationary sources of air toxics include industrial facilities such as coke ovens for the steel industry, refineries and smaller sources like gas stations. Envtl. Prot. Agency, 2011 National Air Toxics Assessment: Fact Sheet, https://www.epa.gov/national-air-toxics-assessment/2011-nata-fact-sheet (last updated Dec. 26, 2016).
 The potential to emit is the maximum capacity of a stationary source to emit a pollutant under its physical or operational design. See 40 C.F.R. § 63.2. A major source is defined as any stationary source, or group of stationary sources located within a contiguous area and under common control, that emits or has the potential to emit 10 tons per year or more of any hazardous air pollutant or 25 tons per year of any combination of hazardous air pollutants. See 42 U.S.C. § 7412(a)(1) (2018). An area source is defined as any stationary source of hazardous air pollutants that is not a major source. 42 U.S.C. § 7412(a)(2).
 John S. Seitz, Envtl. Prot. Agency, Memorandum, Potential to Emit for MACT Standards – Guidance on Timing Issues, 9 (May 16, 1995) (withdrawn Jan. 25, 2018).
 William L. Wehrum, Envtl. Prot. Agency, Memorandum, Reclassification of Major Sources as Area Sources Under Section 112 of the Clean Air Act (Jan. 25, 2018).
 Id. at 3 (“The [“once in, always in”] policy articulated in the May 1995 Seitz Memorandum is contrary to the plain language of the CAA, and therefore, must be withdrawn.”). As previously noted, the statute defines a major source as “any stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit considering controls, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants.” 42 U.S.C. § 7412(a)(1). The statute also defines an area source as “any stationary source of hazardous air pollutants that is not a major source.” § 7412(a)(2). According to the EPA, because the definition only refers to the actual or potential emissions of source, the statute does not allow for any additional temporal considerations.
 The D.C. Circuit court hears proportionately more cases involving administrative law than does any other circuit court. In 2010, thirty-six percent of the petitions for review of administrative decisions were filed in the D.C. Circuit Court. See Eric M. Fraser et al., The Jurisdiction of the D.C. Circuit, 23 Cornell J. L. & Pub. Pol’y 131, 132 (2013). However, an as applied challenge to a permit issued to a facility may be filed in the district court of the state in which the facility is located. See 42 U.S.C. § 7604(a)(3) (2018).
 See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125-26 (2016); FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515, 537 (2009) (Kennedy, J. concurring in part and concurring in the judgment) (“An agency cannot simply disregard contrary or inconvenient factual determinations that it made in the past, any more than it can ignore inconvenient facts when it writes on a blank slate.”); Shaw’s Supermarkets, Inc. v. NLRB, 884 F.2d 34 (1st Cir. 1989). William W. Buzbee, The Tethered President: Consistency and Contingency in Administrative Law (forthcoming) (on file with author).
 Wehrum, supra note 7 at 4 (“…by applying the statute as written as EPA is now doing, many types of sources will be afforded meaningful incentives to undertake [HAP emission reduction] projects.”).
 See Prill v. NLRB, 755 F.2d 941, 942 (D.C. Cir. 1985) (“[J]udicial deference is not accorded a decision…when the [agency] acts pursuant to an erroneous view of law and, as a consequence, fails to exercise the discretion delegated to it by Congress.”). See also U.S. Postal Serv. v. Postal Regulatory Comm’n, 640 F.3d 1263, 1264 (D.C. Cir. 2011) (remanding the Commission’s interpretation of the Postal Accountability and Enhancement Act of 2006 because it incorrectly concluded the plain meaning of the statutory language required a particular result). The preference for remand is based on the concern that the agency would have selected a different interpretation had it understood that the statute was amenable to that interpretation. See id.; Daniel Hemel & Aaron Nielson, Chevron Step One and a Half, University of Chicago Public Law & Legal Theory Paper Series No. 602 (2016); see also Buzbee, supra note 9.
 See Prill at 942; Nicholas Bagley, Remedial Restraint in Administrative Law, 117 COLUM. L. REV. 253, 297 (2016).
 852 F.3d 1118, 1122 (D.C. Cir. 2017).