10th Circuit Holds that EPA May Change Tentative Interpretation of Regulation without Following Procedural Requirements of the Administrative Procedure Act

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In United States v. U.S. Magnesium, No. 08-4185, the 10th Circuit United States Court of Appeals addressed whether failure to comply with the notice and comment procedures of the Administrative Procedure Act (“APA”) precluded the United States Environmental Protection Agency (“EPA”) from changing its prior interpretation of an ambiguous 1991 regulation.

The 10th Circuit held that EPA remained free to change its prior tentative regulatory interpretation and issue a new interpretation without assuming APA notice and comment obligations.

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