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BECKHAM, LISA

Subject: Call between EPA and ADEQ

Location: Call-in # 866-299-3188, Code 257-6554

Start: Fri 2/20/2015 10:30 AM

End: Fri 2/20/2015 11:30 AM

Show Time As: Tentative

Recurrence: (none)

Meeting Status: Not yet responded

Organizer: BECKHAM, LISA

To discuss the definition for begin actual construction.
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BECKHAM, LISA

From: BECKHAM, LISA

Sent: Tuesday, February 17, 2015 11:48 AM

To: 'Steve Burr'

Subject: Summary of Begin Actual Construction

Hi SteveAs discussed last week – here’s a summary of the issue with the definition for “begin actual construction.” I’ll note that 

this is preliminary information, as EPA has not formally made a determination as to which portions of ADEQ’s definition 

are, or are not, approvable. 

EPA interpretation of definition: 

In the late 1970s EPA responded to several requests from specific stationary sources to determine the particular 

activities that the particular source could engage in before receiving a permit, and that would not constitute beginning 

actual construction. These were case-by-case decisions given the particular facts and circumstances of the source of 

modification. Then in December 1978 EPA issued a memo moving away from case-by-case decisions for determining 

what constitutes “begin actual construction” and laid the groundwork for our interpretation of the definition. 

Subsequent memos on the issue have remained consistent with the December 1978 memo. 

· 12/18/1978 Memo: http://www.epa.gov/Region7/air/nsr/nsrmemos/cnstrctd.pdf

· 11/4/1993 Memo: http://www.epa.gov/Region7/air/nsr/nsrmemos/rev_con.pdf

· 12/13/1995 Memo: http://www.epa.gov/Region7/air/nsr/nsrmemos/19951213.pdf

· 5/13/1995 Memo: http://www.epa.gov/Region7/air/nsr/nsrmemos/cnstrctn.pdf

Recent EPA Actions Related to Onsite Activities Allowed Prior to Receiving a Permit 

Last year, EPA disapproved a SIP submittal for South Dakota that allowed for activities prior to receiving a permit that 

are beyond the activities allowed under the definition for begin actual construction. In addition, in December 2014 EPA 

commented on Ohio’s similar approach to allowing certain activities prior to receiving a permit. 

· South Dakota – proposed disapproval: http://www.gpo.gov/fdsys/pkg/FR-2014-04-16/pdf/2014-08500.pdf

· South Dakota – final disapproval: http://www.gpo.gov/fdsys/pkg/FR-2014-06-27/pdf/2014-14031.pdf

· Ohio Comment Letter: 

http://yosemite.epa.gov/r5/r5ard.nsf/8a853ab744d510c68625745800533fd5/3499164915409ed286257db000

75b0e4/$FILE/OAC%203745-31.pdf

Specific Concerns Related to ADEQ’s Definition 

While ADEQ’s definition is generally closer to the definition of begin actual construction than the submittals by the 

North Dakota and Ohio programs, it still allows for construction that is of a permanent nature prior to receiving a permit 

(e.g., R18-2-101(20)(a)(iii)). As a result, this definition appears to be a relaxation from the current SIP approved 

definition, and ADEQ must be able to demonstrate that its definition is at least as stringent in all respects. See 40 CFR 

51.166(b)(1). Also, an analysis under section 110(l) of the Act is needed. 

In addition, as required by 40 CFR 51.160 and 51.161, it does not appear to meet the requirements to prevent

construction or modification without first being reviewed by ADEQ, the public, and EPA. In some instances, for minor 

sources, ADEQ’s definition specifically allows for activities that EPA has identified as being included in the definition for 

begin actual construction (such as installation of building supports and foundation, laying of underground pipework, and 

construction of permanent storage structures). These activities would be allowed without any determination that the 

construction or modification is not subject to major NSR. For example, an existing major source could determine that 

their particular project is subject to minor NSR and begin making permanent changes to the source prior to even 

submitting an application. Upon submittal and review of the application, it could be determined that the project 
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requires a major NSR permit or needs enforceable limits to avoid being considered a major modification. In such a 

circumstance, construction was not “prevented.” 

We recognize ADEQ’s desire to provide clarity to the regulated community about which activities a source can engage in 

prior to receiving a permit. Therefore, we would like to work with ADEQ to develop a definition that is approvable, while 

also providing clarity to the regulated community. However, the currently submitted definition does not appear to be 

consistent with EPA’s definition of begin actual construction or to adequately meet the requirements of 40 CFR 51.160 

and 161. 

Lisa Beckham 

Environmental Engineer 

Air Permits Office 

EPA Region 9 

(415) 972-3811