The U.S. Environmental Protection Agency is attempting to continue stringent regulation of sites once considered a “major source” of air pollution but have since become more efficient and downgraded to a minor source of air pollution. The proposed rule is not permissible under the Clean Air Act as written by Congress and should be eliminated.

GPA Midstream Association has advocated for years to eliminate the “Once-In, Always-In” policy of the EPA. The agency discarded the previous policy in Nov. 2020, and we are disappointed to see EPA propose a return to it under the current administration.

The “Once-In, Always-In” policy would be reinforced by the proposed rule, which is contrary to the plain language in the Clean Air Act and has imposed unnecessary compliance cost and burdens even after operators implemented emission reductions.

Midstream companies frequently change equipment at gas gathering sites. Some of that new equipment, such as stationary engines, is smaller, more efficient and reduces hazardous air emissions. Under the proposed rule, even if the site is downgraded from a “major source” to a lower emission “area source,” it would still be subject to the stiffer and costly regulations of its previous status.

In comments filed Nov. 13 with the EPA, GPA Midstream contends that the law as passed by Congress prohibits regulating lower-emitting sites the same as major sources of emissions even if they previously held that designation. The EPA is also using a non-permissible hypothetical scenario that assumes a minor “area source” would increase air emissions from one ton per year to 9.9 tons, or just below the 10-ton lower limit for a “major source.”

In addition, the EPA does not cite any cases where backsliding occurred and does not reference years of data that could be analyzed to determine if there is any real basis for the proposed rule.

Even if the impermissible proposed rule is finalized, GPA Midstream believes it should be forward looking only. As written, the rule would apply retroactively to any site that was reclassified as an “area source” dating back to Jan. 25, 2018. Well established case law bears out that congressional acts and administrative rules should not have a retroactive effect.