New Source Review Program "Reactivation Policy"
The U.S. Environmental Protection Agency has historically applied a policy under the Clean Air Act New Source Review program known as the "Reactivation Policy" for the purpose of determining whether an NSR permit was required to resume the operation of an idle stationary source. Under the Reactivation Policy, EPA presumed that a major stationary source that was idle for two or more years was permanently shut down and thus subject to NSR permitting requirements applicable to a newly constructed source prior to restarting operations. That presumption controlled unless the source could rebut the presumption by providing evidence that it intended to restart operations at the time the source went idle. On July 25, 2023, the U.S. Court of Appeals for the Third Circuit rejected an EPA determination that a specific stationary source would require an NSR permit to restart based on the principles in the Reactivation Policy. See Port Hamilton Refining and Transportation, LLLP v. EPA, 87 F .4th 188 (3d Cir. 2023) (''Port Hamilton'').
In response to the reading of the Clean Air Act reflected in the Third Circuit's decision, the agency will no longer apply any form of the Reactivation Policy in its NSR permitting determinations and enforcement proceedings, or in its oversight of state, local and tribal air permitting programs. EPA will continue to apply the modification provisions of the NSR program to shut down sources in accordance with the CAA and applicable EPA regulations. Thus, where an existing major stationary source that has been idle makes a change in order to enable it to resume operation, EPA will not require the source to obtain an NSR permit unless this change qualifies as a "major modification" under applicable regulations based on the nature of the change and the magnitude of any resulting increase in emissions.
This document is part of the NSR Policy & Guidance Database. Some documents in the database are a scanned or retyped version of a paper photocopy of the original. Although we have taken considerable effort to quality assure the documents, some may contain typographical errors. Contact the office that issued the document if you need a copy of the original.