EPA finalizes rule allowing some major polluters to follow weaker emissions standards

The Environmental Protection Agency (EPA) on Thursday finalized a rule that could reclassify many “major” sources of pollution as minor ones, allowing facilities to abide by less-stringent emissions standards for dangerous substances such as mercury, lead and arsenic.

The reclassification changes a 1995 rule that for decades has held major emitters to tighter standards even if their operators have taken actions to reduce their pollution — a policy known as “once in, always in.”

The agency estimated that the changes will result in up to 1,258 tons per year of additional emissions of hazardous air pollutants.

John Walke, a senior attorney with the Natural Resources Defense Council, said the rule would allow corporations to emit more of “some of the most potent carcinogens and neurotoxins” they’ve successfully reduced.

“It’s especially outrageous because it’s 100 percent gratuitous: these are plants that have been complying with 95 to 98 percent reduction obligations, with already-installed [pollution] controls, for decades. It’s the triumph of extreme ideology over public health, common sense and the law,” he said.

The rule allows major sources to become reclassified if they now meet the hazardous air pollutants guidelines in place for the smaller “area” polluters — producing 10 tons per year or less of a single toxin, or 25 tons a year for facilities that emit multiple toxins.

The EPA argues that the current policy reduces incentives for facilities to limit their air pollution while rescinding it encourages them to do so. 

“Today’s action is an important step to further President Trump’s regulatory reform agenda by providing meaningful incentives for investment that prevents hazardous air pollution,” said EPA Administrator Andrew Wheeler in a statement, adding that the rule “will end regulatory interpretations that discourage facilities from investing in better emissions technology.”

But critics say facilities that have been ordered to reduce pollution anywhere from 90 to 99 percent may now emit well below the 10 ton and 25 ton threshold, so cutting back on the use of expensive controls could lead their emissions to skyrocket.

“Is industry going to try and save money and pollute more or spend more money and pollute less? I think that question answers itself,” Walke said, accusing Wheeler of “magical thinking.”

When it first proposed the rule, the EPA estimated that about 3,900 emitters could be reclassified and subjected to weaker standards than before.

The finalized version doesn’t provide an explicit estimate of how many facilities may reclassify, saying “the unique nature of each source’s decision process makes it difficult for the EPA to determine the number and type of sources that may choose to reclassify under this rule.”

It added that there are a total of 7,183 facilities currently subject to the major source standards.

Clinton administration EPA head Carol Browner called the rule “another blow to our health and environment from an EPA administration that relentlessly attacks bedrock environmental protections.”

“This is a lawless action that will undoubtedly increase carcinogens and other deadly pollution in our air,” Browner said in a statement. “Taking this action during a global pandemic that preys upon people with existing respiratory ailments further confirms that for Andrew Wheeler and the political leadership of the EPA the cruelty is the point.”

Environmental groups are likely to sue over the change, arguing it’s a violation of the Clean Air Act.

The EPA has targeted the once-in, always-in policy since at least 2018, when it issued guidance seeking to repeal it.

Former EPA assistant administrator for the Office of Air and Radiation Bill Wehrum argued that the guidance would “reduce regulatory burden for industries and the states, while continuing to ensure stringent and effective controls on hazardous air pollutants.”

—Updated at 4:14 p.m.