EPA Reverses Toxic Pollutant Policy Under Clean Air Act

On January 25, the EPA issued a memorandum reversing the "once-in-always-in" policy under the Clean Air Act ("Act") which prevented major sources of toxic air pollutants from removing pollution control devices at their facilities once actual emissions fell below major source thresholds.  The new policy will allow these facilities to be reclassified as smaller "area" sources subject to less stringent requirements.  The policy originated in a 1995 memorandum which clarified when major sources (defined as facilities that released at least 10 tons per year of single toxic air pollutant or 25 tons of any combined toxic pollutants each year) can be reclassified as area sources.  Under the old policy, once a facility was determined to be a major source, and appropriate pollution controls installed, the facility could not remove the pollution control devices even if reduced its toxic air emissions below the major source threshold.  The new policy is intended to encourage major