Air Permits to Construct: Before You Build

Generally, Federal law requires that an applicant obtain a permit before construction can begin. Minor new source review permits also require a permit prior to construction activities unless the applicant chooses at its own risk, to begin construction for certain projects allowed pursuant to 30 TAC Chapter 116.118.

There are a variety of construction activities that the EPA has identified that generally would be allowed prior to the issuance of a permit including planning, ordering of equipment and materials, site clearing, grading, and on-site temporary storage of equipment and materials. Site clearance and preparation activities are determined on a case-by-case basis depending on the unique facts and circumstances of each case.

The EPA has issued documents over many years that provide guidance on the types of construction activities that are allowed before obtaining a permit. These documents are available online (Begin Actual Construction | US EPA). Below are links to some of the most significant documents:

• Memorandum, Edward E. Reich, Director, U.S. EPA Division of Stationary Source Enforcement, to Enforcement Division Directors Regions I-X (December 18, 1978). Interpretation of "Constructed" as it Applies to Activities Undertaken Prior to Issuance of a PSD Permit (epa.gov).
• Memorandum, Edward E. Reich, Director, U.S. EPA Division of Stationary Source Compliance, to Robert R. DeSpain, Chief, Air Programs Branch, EPA Region VIII (March 28, 1986).
• Memorandum, John B. Rasnic, Director, U.S. EPA Stationary Source Compliance, Office of Air Quality Planning and Standards, to Bernard E. Turlinski, Chief Air Enforcement Branch, EPA Region III (May 13, 1993).
• Memorandum, Dave Howekamp, Director, Air and Toxics Division, EPA Region IX, to all Region IX Air Agency Directors and NSR Contacts (November 4, 1993).
• Letter from John S. Seitz, Director, EPA Office of Air Quality Planning and Standards, to Charles W. Williams, Commissioner, Minnesota Pollution Control Agency (December 13, 1995).

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