The U.S. Environmental Protection Agency (EPA) proposed a rule to implement the clear language of the Clean Air Act that allows a “major source” of hazardous air pollutants (HAP) to reclassify as an “area source” after acting to limit emissions to below the levels that define major sources. This proposal would relieve reclassified facilities from regulatory requirements intended for much larger emitters and encourage other sources to pursue innovations in pollution reduction technologies, engineering, and work practices.

“‘Once in, always in’ policies discourage facilities from deploying the latest pollution control technologies or modernizing in ways that increase efficiency and reduce emissions,” said EPA Administrator Andrew Wheeler. “Today’s proposal would remove a major regulatory burden and incentivize investments in technologies that improve air quality and public health.”

“This action is based on a clear reading of the statute that is in line with EPA’s guidance for other provisions of the Clean Air Act,” said Bill Wehrum, assistant administrator of EPA’s Office of Air and Radiation. “It will reduce regulatory burden for industries and the states while continuing to ensure stringent and effective controls on hazardous air pollutants.”

Today’s action would implement EPA’s reading of the Clean Air Act described in a January 2018 guidance memo withdrawing the “once in, always in” policy. Established in 1995, the “once in, always in” policy determined that any facility subject to major source standards would always remain subject to those standards—even if production processes changed or controls were implemented that eliminated or permanently reduced that facility’s potential to emit hazardous air pollutants. States, state organizations, and industries frequently noted that the “once in, always in” policy discouraged voluntary pollution abatement and prevention efforts and technological innovations that would reduce hazardous air pollution emissions. EPA’s January 2018 memo found EPA had no authority under the Clean Air Act to limit when a facility may be determined to be an area source and that facilities may be reclassified as area sources once their potential to emit hazardous air pollutants falls below the levels that define major sources.

EPA estimates that this proposal would result in cost savings when compared to the agency’s previous “once in, always in” policy. Of the estimated 7,920 sources subject to national emissions standards as a major source, EPA estimates nearly half could become area sources, saving $168.9 million in the first year and $163 million to $183 million annually (in 2014 dollars) in the following years.

EPA requests comment on all aspects of this proposal, including:

• EPA’s position that the proposed approach is the proper reading of Clean Air Act section 112(a) and is consistent with the act’s clear language and structure.
• Requirements for establishing effective HAP emissions limits.
• Allowing limitations issued by the state/local/tribal air pollution control agencies to be recognized as effective provided they are legally and practically enforceable.
• Safeguards that may be appropriate to protect against emissions increases.

EPA will accept comment on the proposal for 60 days after publication in the Federal Register.

Olivia Covington for www.theindianalawyer.com

The Indiana Supreme Court has upheld the seizure of $60,000 in cash believed to be drug money, finding the officer who intercepted the parcel holding the cash had probable cause to think the package was related to drug trafficking. The unanimous ruling also upholds the turnover of the cash to the federal government, though it doesn’t address whether the money will be forfeited.

The case of Michael Hodges v. State of Indiana, 19S-MI-117, began in 2017, when Detective Brian Thorla and his K-9 partner, Hogan, were investigating parcels at an Indianapolis FedEx shipping facility. One package caught Thorla’s attention because it was being shipped to California, was addressed to “Christopher Smith,” was in a new FedEx box, had been paid for with cash and was shipped priority overnight with no signature required upon delivery. In Thorla’s experience, these factors, including shipping to a drug “source” state and the use of a generic name, indicated involvement with drug trafficking.

Hogan twice alerted to a narcotics odor coming from the package, shipped by Michael Hodges, so Thorla obtained a warrant to search the parcel for “controlled substances…, records of drug trafficking and proceeds of drug trafficking,… involving the proactive attempts of concealing currency as listed in the affidavit … .” The warrant required Thorla “to seize such property, or any part thereof, found on such search.”

When Thorla opened Hodge’s package, he found a vacuum-sealed plastic container filled with $60,990 in cash. The container was surrounded by “padded packs,” some of which are often used to conceal odors.

Hogan then alerted on the cash, so police seized the money and obtained a court order to transfer it to the federal government. The transfer was stayed pending appeal, at which point the Court of Appeals determined the seizure of the cash was unlawful.

But after hearing oral arguments in April, the Supreme Court upheld the seizure a Thursday opinion. Chief Justice Loretta Rush, writing for the unanimous court, said that under the totality of the circumstances, Thorla had probable cause to seize the cash.

The telltale signs that the parcel was possibly involved in drug trafficking gave Thorla probable cause to seek the search warrant, Rush said. And what he found inside the box — multiple layers of sealed packaging, a vacuum-sealed plastic container, the large amount of rubber-banded cash — gave him probable cause to seize the money.

“Might each of these circumstances be the result of innocent behavior? Yes,” the chief wrote. “It may well be that the cash is not proceeds of drug trafficking. It may be as Hodges asserts – that he mailed the $60,990.00 to a World Series ticket holder in a lawful exchange for expensive tickets.

“But the existence of a post hoc innocent explanation does not preclude probable cause from forming,” she continued. “Here, the combination of circumstances gave Detective Thorla reason to believe that the cash was proceeds of drug trafficking. That is enough to meet the probable-cause standard, making the seizure lawful and the turnover proper.”

In a footnote, the court disapproved of the 2017 decision in Bowman v. State, 81 N.E.3d 1127 (Ind. Ct. App.), modified on denial of reh’g (Ind. Ct. App. 2017) — which Hodges relied on and the COA cited — to the extent that it conflicts with Thursday’s decision.

Rush ended by noting that just because the cash is seized and turned over to the feds does not mean it will be forfeited – the government also has the option of returning it.

“If it seeks forfeiture, the court overseeing that proceeding may assess any innocent explanations for the circumstances and determine who is entitled to the property,” she wrote. “We decide only that the turnover from state to federal authorities is proper.”