The U.S. Environmental Protection Agency is proposing to allow construction of a non-emitting air pollution component or structure for power generation, data centers and manufacturing to begin before a permit is obtained under the federal Clean Air Act’s new source review program.
The proposal, which would include work on certain cement pads and associated wiring, piping and support structures, would revise the federal definition of “commence actual construction” and add a new definition of “activities that emit pollutants” to the new source review rules governing preconstruction permits for certain stationary sources.
If finalized, the proposal would codify how permitting authorities distinguish between stationary source construction and non-emitting components or structures, the EPA said in a statement. It is intended to provide flexibility for owners, operators and permitting authorities to determine on a case-by-case basis what constitutes the start of construction of a new stationary source or major modification before obtaining a new source review permit, the agency said.
The public comment period on the proposal closes on June 29.
The move would provide “solutions to the problems that have held back critical American infrastructure and advance the next big technological breakthrough,” EPA Administrator Lee Zeldin said in a statement.
The proposal aligns with President Donald Trump’s executive order last July to speed up federal data center infrastructure permits. The order includes guidelines to streamline Clean Air Act regulations, among other laws.
By law, the new fountain review program requires permits prior to the construction of stationary fountains, regardless of whether the work is new construction or modification of existing fountains.
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The EPA says, however, that from the beginning, the law has been ambiguous about what types of construction are allowed before obtaining a permit.
The agency has announced several new source review program permit changes since last year. They included an amendment last September to their “reactivation policy” that determined whether a new source review permit would be required to resume operation of an inactive stationary source. Citing a 2023 legal challenge to the policy, the EPA determined that a permit is no longer required for an existing major stationary source that has been inactive but makes a change to resume operation, unless the change qualifies as a “major modification” under certain regulations.
In a policy alert, The Conference Board said that if the measure is finalized it could shorten development timelines. He noted that the EPA warns companies that while they may begin construction of non-emitting components or structures, they do so “at their own risk” because a new source review permit may be denied or require major design changes.
“Developers may see the proposal as an opportunity to reduce project uncertainty and accelerate construction schedules, particularly for large facilities with long lead times,” the Conference Board said.
Harvard Law School’s Environmental and Energy Law Program, however, defended the current pre-construction permitting system under the new source review program.
“Because [it] covers a variety of facilities, from paper mills and plastics production to power plants and auto manufacturing, any changes to weaken the program could have widespread impacts across the country,” Harvard Law said on its website. “When the EPA interprets the law more leniently, industry can undertake more construction projects that increase emissions without installing and operating emissions control technology.” The result can be dirtier air in the nearby communities and negative effects on health and the environment, he said.
