Foley Hoag LLP - Environmental Law

EPA Administrator Wheeler has distributed a “Revised Policy on Exclusions from ‘Ambient Air’”. Here’s the short version. EPA has long defined “ambient air” as outside air “to which the general public has access.”

EPA’s policy has been to require the regulated community to satisfy two criteria to invoke an exclusion. First, the regulated entity must have legal control over the land. Second, there must be a “fence or other physical barriers”. The new interpretation eliminates the per se requirement of a physical barrier and substitutes a broader test that allows other measures:

that are effective in precluding access to the land by the general public.

It’s not obvious to me that this is the end of the world as we know it. I could imagine a Democratic EPA making the same change. After all, the key is that the public be excluded, not the manner in which they are excluded. Once EPA has taken the initial step of defining “ambient air” to exclude some air that’s outside of buildings – which has always been the case – then why wouldn’t we allow any and all means that are in fact effective at excluding the public?

Nonetheless, I do find Wheeler’s memorandum to be more than a little disingenuous. Taking up one of my favorite issues, Wheeler states that the:

revised policy … is neither a regulation subject to notice-and-comment rulemaking requirements nor a final agency action.

This administration’s approach to the guidance/regulation divide continues to be that it will be called regulation if it makes life more difficult for regulated entities and it will be called guidance if it makes life easier for them. That’s helpful to my clients and consistent with the interpretation of the “Wehrum Memo” recently stated by the D.C. Court of Appeals, but I still find it legally suspect.

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