ABC, U.S. Chamber Support EPA Clarification on Interpretation of the Term ‘Begin Actual Construction’ in Permitting Process
May 13, 2020
ABC and the U.S. Chamber of Commerce appreciate the U.S. Environmental Protection Agency’s efforts to provide clarification to the interpretation of the term “begin actual construction” in regulations implementing the major New Source Review permitting program, they wrote in a May 11 letter. Under the draft guidance, titled Interpretation of “Begin Actual Construction” Under the New Source Review Preconstruction Permitting Regulations, a source owner or operator may, prior to obtaining an NSR permit, undertake physical on-site activities—including activities that may be costly, that may significantly alter the site, and/or are permanent in nature—provided that those activities do not constitute physical construction on an emissions unit.
“Coordinated, predictable and transparent processes that clarify and streamline permitting will enable our members to plan and execute even the most complex projects while safeguarding our communities, maintaining a healthy environment and being good stewards of public funds. Our members take the appropriate measures that are required of them to comply with federal and state permitting processes and to help meet the attainment goals of ambient air quality standards under the NSR Prevention of Significant Deterioration program,” ABC and the Chamber wrote.
ABC and the Chamber also made the following points in the letter:
- Significant air quality improvements have been made over the last few decades.
- Simplification and clarification in the permitting process will help spur economic growth and maintain America’s competitiveness.
- The revised interpretation is needed to support more efficient project development and reduce permitting costs.
- The EPA should make clear that ‘emissions unit’ is narrowly focused on equipment that causes emissions or directly impacts the magnitude of emissions.
- “Equity in the ground” should not be considered a factor of influence on the permitting agencies’ decision to grant an NSR permit.
Summary of the Draft Guidance from the EPA:
- An owner or operator of a major stationary source or major modification must obtain an NSR permit before “begin[ning] actual construction” on the facility.
- Currently, EPA considers almost every physical on-site construction activity that is of a permanent nature to constitute the beginning of “actual construction,” even where that activity does not involve construction “on an emissions unit.”
- This interpretation tends to preclude source owners/operators from engaging in a wide range of preparatory activities they might otherwise desire to undertake before obtaining an NSR permit.
- Under this revised interpretation, a source owner or operator may, prior to obtaining an NSR permit, undertake physical on-site activities—including activities that may be costly, that may significantly alter the site, and/or are permanent in nature—provided that those activities do not constitute physical construction on an emissions unit.
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