Air Permits to Construct: Before You Build

Before Your Permit is Issued

Under the rules found in Title 30, Texas Administrative Code (30 TAC), Section 116.110 , any person who plans to construct any new facility that will emit, or to modify any existing facility that emits air contaminants in Texas must take one of these steps before any actual work on the facility begins:

• Obtain a state air permit by following the general application process described in 30 TAC Section 116.111.
• Satisfy the conditions for a standard permit.
• Satisfy the conditions for a flexible permit.
• Satisfy the conditions for all relevant permits by rule.
• Ensure that the criteria for a de minimis facility or source stated in 30 TAC Section 116.119 are satisfied.

What is "Start of Construction?"

Section 382.0518(a) of the Texas Clean Air Act (relating to preconstruction authorization) states: "Before work is begun on the construction of a new facility or a modification of an existing facility that may emit air contaminants, the person planning the construction or modification must obtain a permit from the commission."

Various inquiries have prompted the Texas Commission on Environmental Quality (TCEQ) to issue guidelines as to what is considered "start of construction." Construction shall be broadly interpreted as anything other than site clearance or site preparation.

Equipment may be received at a plant site and stored provided no attempt is made to assemble the equipment or to connect the equipment into any electrical, plumbing, or other utility system. Portable equipment such as hot mix asphalt plants and rock crushers may be placed on the property provided no work is done to assemble or erect the equipment.

All work such as excavation, form erection, or steel laying pertaining to foundations upon which permit units will rest shall be considered construction. For permit units not requiring a concrete foundation, the erection or construction of associated items like earthen dams, placement of piling, soil stabilization, storage tank fills, or retaining structures shall be considered construction, and will NOT be allowed without prior receipt of the construction permit.

Land clearing, soil load bearing tests, leveling of the area, sewer and utility lines, road building, power line installation, fencing, construction shack building, etc., are considered "site clearance/preparation." However, once the soil and site are ready for foundations, the first excavation into the readied soil is "start of construction."

If you have any questions regarding the definition of "start of construction,"please submit them in writing to the Office of Air, Air Permits Division, with copies to the appropriate TCEQ regional office and any local program(s). Please note that statements made over the telephone or during meetings are not acceptable as authorization to perform any activity which may subsequently be determined to be unauthorized "start of construction." Each request for clarification must be in writing with sufficient detail to identify the specific activity in question, and the TCEQ authorization in response to this request must be in writing for the authorization to be valid.

Remember -- verbal requests and authorizations or agreements reached via telephone or in meetings are not valid unless followed up with written requests and authorizations!

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