UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
 

WASHINGTON, D.C. 20460
 

OFFICE OF 

AIRANDRADIATION 

MAR 28 1986 

SUBJECT:	 Construction Activities Prior to Issuance of a PSD Permit with Respect to "Begin 

Actual Construction" 

FROM:	 Director 

Stationary Source Compliance Division 

Office of Air Quality Planning and Standards 

TO:	 Robert R. DeSpain, Chief Air Programs Branch, Region VIII 

This memorandum addresses the interpretation of "begin actual construction" as it refers 

to construction activities which may occur, or are prohibited prior to issuance of a PSD permit 

under 40 CFR 52.21 (i). The Control Programs Development Division of OAQPS, the Office of 

General Counsel, and the Air Enforcement Division of the Office of Enforcement and Compliance 

Monitoring were consulted in the development of this memorandum, and all three offices concur 

with its content. 

Section 165(a) ofthe Clean Air Act states that "[n]o major emitting facility...may be 

constructed ...un less - (1) a perm it has been issued ... [and various other requ irements are 

satisfied]." Section 165 requirements, then, apply to major emitting facilities, i.e. major stationary 

sources. However, the PSD regulations at Section 52.21 (i) (l) state that, "[n]o stationary source 

or modification... shall begin actual construction without a permit which states that the stationary 

source or modification... [has met various requirements]." The term "begin actual construction" at 

Section 52.21 (b) (11) in the PSD regulations refers to "construction 

activities on an emissions unit." Emissions unit is defined at Section 52.21 (b)(7) as "...any part of 

a stationary source which emits or would have the potential to emit any pollutant subject 
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to regulation under the Act." Therefore, although applicability of PSD is determined on a 

source-wide basis, it may become necessary to distinguish the emissions unit from the major 

stationary source or modification in order to determine at what point in construction planning or 

construction activities a PSD permit is required. 

The question of what type of construction activities may be conducted prior to issuance of 

a PSD permit has been covered by EPA policy for many years. On December 18, 1978 EPA 

issued policy addressing this issue. That memorandum specified that certain limited activities 

would be allowed, such as planning, ordering of equipment and material, site-clearing, grading, 

and on-site storage of equipment and materials. Any of these activities, if undertaken prior to 

issuance ofa PSD permit, would be at the risk of the owner or operator. All on-site activities ofa 

permanent nature aimed at completing a PSD source (including, but not limited to, installation of 

building supports and foundations, paving, laying of underground pipe work, construction of 

permanent storage structures, and activities ofa similar nature) are prohibited until the permit is 

obtained, under all circumstances. This December 1978 policy defines the type of construction 

activities allowed at a PSD-affected source prior to issuance of a PSD permit. 

Since section 52.21 (i) (l) specifies that a source may not begin actual construction (on an 

emissions unit) until a PSD permit is obtained by that source, and "begin actual construction" at 

Section 52.21 (b) (11) refers to the emissions unit, it is necessary to clarify the definition of 

emissions unit. "Emission unit" as defined at Section 52.21 (b) (7) refers not only to 

units which emit pollutants subject to review under PSD, but to any part of the source 

which emits a pollutant subject to regulation under the Clean Air Act. By definition then, 

any part of a PSD source which would emit any pollutant subject to regulation under the 

Act is considered an emissions unit, even if that particular unit is not subject to PSD 

review. The emissions unit would include any installations necessary to accommodate that 

unit. Therefore, before issuance of the PSD permit, construction is prohibited on any 

emissions unit or on any installation designed to accommodate the emissions unit. If the 

emissions unit (including any accommodating installation) is an integral part of the 
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source or modification (i.e. the source or modification would not serve in accordance with its 

original intent, except for inclusion of the emissions unit), the PSD permit must be obtained 

before construction on the entire source commences. 

The policy statement from 1978 reflects the current policy on the types of construction 

activities which are prohibited, or may occur at risk to the owner prior to issuance of a PSD 

permit. Language changes in the regulations after this guidance was issued did not alter EPA's 

interpretation of what a source may do prior to obtaining a PSD permit. 

If you have any questions, please contact Sally M. Farrell at FTS 382- 2875. 

Edward E. Reich 

cc:	 Kirt Cox, OAQPS 

Gregory Foote, OGC 

Douglas A. Johns, DOJ 

Judith Katz, OECM 

Tim Osag, Region VIII 

NSR Regional Contacts