EPA sends "Begin Actual Construction" to OMB

In our article on "A New Beginning for 'Begin Actual Construction'" in September 2025, we discussed the EPA's guidance in an individual source letter that relaxed the historic policy interpretation of "begin actual construction." Readers may recall that historically, EPA has taken the position that any construction at a PSD facility except for limited ground clearing activities must be held in abeyance until the PSD permit is issued. In the September guidance, the EPA allowed state authorities discretion to allow construction of facilities that were not emitting units to begin construction, adopting a narrower view of "accommodating an emissions unit." At that time, NSR Law Blog noted and supported EPA's statement that it would propose a rule on this issue.

NSR Law Blog can now report that the EPA has followed through and sent a proposed rule package to the Office of Management and Budget (OMB) for pre-release review. This means that NSR practitioners should see a proposed rule in the next couple of months.

Stay tuned.