Full-Service Law Firm solving complex challenges through bold thinking, precise execution, and shared purpose.

Full Service Law Firm | Michael Best & Friedrich LLP

Specializing in the Intersection of Business &amp; Government

Meet our team of trusted advisors, strategic thinkers, and community builders dedicated to client success.

Learn about our full-service legal and business solutions, designed to address complex challenges for leading organizations across industries.

Access thought leadership, news, and resources to stay informed about the latest trends, legal developments, and industry innovations.

Discover how partnership, bold thinking, and precise execution drive results for clients nationwide.

Explore how our national reach and local expertise support clients across the United States and beyond.

Grow at a firm designed to bring out your best.

On September 2, 2025, the EPA issued new guidance broadening the scope of construction that is allowed prior to a source obtaining a New Source Review (NSR) preconstruction permit.

core/paragraph

The NSR regulations prohibit stationary sources from “beginning actual construction” prior to obtaining this permit, which historically included a broad range of activities. Consequently, only limited activities such as site-clearing and grading were authorized according to historic EPA guidance. Now, EPA has provided a new interpretation of what it means for a site to “begin actual construction”.

In the September 2 guidance, EPA issued a case-specific determination explaining that “begin actual construction” prohibits only a narrow scope of construction: that related to the site’s emission unit. The September 2 interpretation was announced in a <a href="https://www.epa.gov/system/files/documents/2025-09/tsmc-arizona-begin-actual-construction-epa-response-letter.pdf">letter</a> issued by the EPA to the Maricopa County Air Quality Department regarding the construction of a semiconductor manufacturing facility.

EPA stated that the prohibition on beginning actual construction prior to obtaining an NSR permit only extends to construction related to the emissions unit itself. In this determination, EPA authorized the site to construct the “core and shell” of the facility prior to obtaining the NSR permit, “provided that the construction of this core and shell . . . does not involve the physical construction on an emission unit or the laying of underground piping or construction of supports and foundations that are part of any emissions unit.” This is broader than past guidance.

While this represents only one case specific determination, the agency announced it intends to formally revise the definition of “begin actual construction” through rulemaking in 2026. Should EPA finalize a similar interpretation as in this September 2 guidance, this would likely expedite project construction by allowing a broader scope of work to begin prior to obtaining the permit.

Person wearing a safety vest reviewing blueprints at a construction site with a hard hat resting on the plans.

Soft light green blurred background with gentle gradients.

EPA’s New Guidance: “Begin Actual Construction”

Related People

Related Capabilities

You may also be interested in these

Michael Best Welcomes Dana Bell as Senior Counsel in Intellectual Property Practice

Seventh Circuit Grapples with BIPA Amendment.

Federal Court Blocks Oregon EPR Law — Implications Beyond Oregon