“Second Guessing” Returns – Update from Hiser Joy

On December 9, 2022, EPA Administrator Michael Regan issued “New Source Review Preconstruction Permitting Requirements: Enforceability and Use of the Actual-to-Projected-Actual Applicability Test in Determining Major Modification Applicability: Rescission of 2017 Memorandum.” As its title states, the December 9, 2022, memorandum rescinds “in its entirety” former Administrator Pruitt’s memorandum of the same name issued on December 7, 2017. The net effect is to remove any impediments on enforcing major NSR applicability that the Pruitt memorandum may have imposed.

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