Since the 1970s, the EPA has applied its “Reactivation Policy” to idle facilities, subjecting sources shut down for two or more years to new source review if restarted. There were some options to rebut this presumption usually related to demonstrating intent to restart at the time of shutdown (e.g. maintenance activities, operator statements, and the cost of reactivation). This policy was specifically articulated in the 1999 Monroe Order.

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 a long-idle refinery in the US Virgin Islands based on the principles in the “Reactivation Policy”. The court held that the Clean Air Act (CAA) unambiguously limits NSR applicability to construction of new sources and modifications of existing sources, not mere operation.

Administrator Zeldin’s September 18, 2025 memorandum (2025 Zeldin Memo) formally rescinds the “Reactivation Policy” nationwide. EPA will apply NSR only where a restart involves a “major modification”—a physical or operational change that increases emissions above regulatory thresholds.

The 2025 Zeldin Memo also stresses the importance of nationwide consistency, both that EPA regional offices should no longer apply the “Reactivation Policy” in permitting or enforcement and that State and local agencies are encouraged to align with this approach.