US | EPA Publishes Draft Memo Modifying Interpretation of “Begin Actual Construction”

On March 25, 2020, US Environmental Protection Agency (EPA) published a draft memo that would modify its long-standing interpretation of “begin actual construction” for New Source Review (NSR) preconstruction permits. If finalized, this new interpretation will allow applicants for NSR preconstruction permits to begin construction activity prior to receiving a permit.

Regulated industries have lobbied for this change, but there is concern from the environmentalist community that it could result in higher emissions. Comments in response to this proposal must be received by May 11, 2020.

The Proposed Interpretation

The NSR preconstruction permit regulations found at 40 CFR 52.21(a)(2)(iii) state:

“[no]o new major stationary source or major modification to which the requirements of paragraphs (j) through (r)(5) of this section apply shall begin actual construction without a permit that states that the major stationary source or major modification will meet those requirements.”

40 CFR 52.21(b)(11) defines begin actual construction as:

“initiation of physical on-site construction activities on an emissions unit which are of a permanent nature. Such activities include, but are not limited to, installation of building supports and foundations, laying underground pipework and construction of permanent storage structures.”

In line with this definition, EPA’s long-standing existing interpretation considers almost every physical on-site construction activity of a permanent nature to constitute the beginning of actual construction.

EPA’s new proposed interpretation disregards the list of activities stated in the regulatory definition and emphasizes instead the importance of “on an emissions unit.” According to this new interpretation, begin actual construction only includes activities performed on the emissions unit.

If this new interpretation is finalized, it could allow facilities to begin some construction on an NSR-regulated source prior to obtaining a preconstruction permit.



Interpretation of “Begin Actual Construction” Under the New Source Review Preconstruction Permitting Regulations, US EPA Draft Interpretation, March 25, 2020.


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