UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460

OFFICE OF AIRANDRADIATION

MAR 28 1986
SUBJECT: Construction Activities Priorto Issuance ofa PSD Permit with Respectto "Begin Actual Construction" FROM: Director Stationary Source Compliance Division Office ofAir Quality Planning and Standards TO: Robert R. DeSpain, ChiefAir Programs Branch, Region VIII This memorandum addresses the interpretation of"begin actual construction" as it refers to construction activities which may occur, orare prohibited prior to issuance ofa PSDpermit under40 CFR 52.21(i). The Control Programs DevelopmentDivision ofOAQPS, the Office of General Counsel, and the Air Enforcement Division ofthe Office ofEnforcement and Compliance Monitoring were consulted in the developmentofthis 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
...unless

- (1) a permit has been issued
... [and various other requirements 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 thatthe 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 havethe potential to emit any pollutant subject2

to regulation underthe Act." Therefore, although applicability ofPSD is determined on a source-wide basis, it may become necessary to distinguish the emissions unit from the major stationary source or modification in orderto determine at what point in construction planning or construction activities a PSDpermit is required. Thequestion ofwhattype ofconstruction activities may be conducted priorto issuance of a PSDpermit 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 ofequipment and material, site-clearing, grading, and on-site storage ofequipment and materials. Any ofthese activities, ifundertaken prior to issuance ofaPSD permit, would be at the risk ofthe owneroroperator. 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 ofunderground pipe work, construction of permanent storage structures, and activities ofasimilar nature) are prohibited until the permit is obtained, under all circumstances. This December 1978 policy definesthe type ofconstruction activities allowed at a PSD-affected source prior to issuance ofa 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

### 3

source or modification (i.e. the source ormodification would not serve in accordance with its original intent, except for inclusion ofthe 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 ofconstruction activities which are prohibited, ormay occurat risk to the ownerpriorto issuance ofa PSD permit. Language changes in the regulations afterthis guidance was issued did not alter EPA's interpretation ofwhata source may do priorto obtaining a PSD permit. Ifyou have any questions, pleasecontact 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