The EPA proposed Monday to allow data centers, power plants and other industrial facilities to begin certain construction work before obtaining the necessary federal aviation permits.
The proposal is the latest development in the Trump administration’s efforts to jump-start new manufacturing and other industries, particularly artificial intelligence.
EPA Administrator Lee Zeldin said the changes will speed up projects by eliminating red tape. “Today’s proposals are designed to provide solutions to problems that have underpinned America’s critical infrastructure and advance the frontiers of the next great technology,” he said in a statement.
Any new facility that is identified as a major source of pollution, or where a major source of pollution has changed significantly, must go through a permitting process called a new source review to ensure that its emissions do not worsen air quality beyond current levels. Industry leaders have long argued that licensing the Northern Sea Route is time-consuming and expensive.
Under Zeldin’s new proposal, companies could begin construction of “non-emission” project components, such as public infrastructure, concrete pads and certain buildings, before obtaining a Northern Sea Route permit.
“These changes are intended to foster economic growth by increasing flexibility for owners and operators to engage in certain construction activities that build or modify fixed air pollution sources prior to obtaining a Northern Sea Route permit, while ensuring the same degree of public health and welfare protection provided by the Northern Sea Route permitting requirements,” EPA said in its proposal.
Until a Northern Sea Route permit is issued, “actual” construction will continue to be prohibited on components of the project that may emit pollutants.
The EPA noted that such pre-licensure construction remains subject to other federal, state, and local laws.
Under previous policy, the EPA was wary of so-called “ground equity,” in which companies that started construction before obtaining a permit could pressure regulators to issue permits where they might otherwise have been denied, or to issue less stringent permits.
But the EPA said its rulemaking was “not intended to establish, and should not be construed as, an argument of fairness or credibility” to enforce the permit.
“Permit applicants who choose to conduct construction activities on-site prior to permit issuance do so at their own financial risk. Permits may be denied or permits may be issued with unanticipated operating conditions, which could result in lost investment and increased construction costs,” the EPA said.
The agency initially suggested similar changes in its 2020 draft guidance document, but they were never finalized. Last fall, the EPA issued guidance to Arizona officials in the form of a project-specific letter allowing certain pre-permit construction of semiconductor factories. This new rule follows on from this and is now easier to apply nationwide.
Proposal (Registration 2060-AW84) Once published in the Federal Register, comments will be accepted for 45 days.
EPA accelerates Title V review
The EPA issued separate guidance Monday to expedite approvals for other types of air permits.
“For too long, the Clean Air Act has been used as an excuse to delay projects that would benefit our communities,” EPA Aviation Director Aaron Szabo said in a statement. “The Trump EPA seeks to change this by clearly interpreting the law so we can protect human health and the environment and have an efficient permitting process.”
After construction, major sources must obtain a “Title V” permit, which defines specific air pollution control requirements on a five-year basis. The permitting authority must publish the draft Title V permit and invite comments for at least 30 days. The EPA has 45 days to review the draft and object if there are problems.
Szabo’s new guidance argues that state permitters can streamline their efforts and shorten the review process by making it clear that EPA reviews can occur concurrently with the public comment period.
“If the permitting authority does not expect to receive significant public comment, EPA strongly encourages the permitting authority to simultaneously submit proposed permits to EPA,” Szabo wrote.
Szabo also pointed out that while the law gives EPA up to 45 days to review the draft, regional offices are not required to do so full time.
Most Title V permits are non-controversial, but if there is “significant” public comment, the permittee must update the permit accordingly. In that case, EPA will limit the follow-up review to only the relevant parts, allowing the review to be completed more quickly.
The memo does not limit the amount of time environmental groups or the general public have to petition the EPA to object to state-issued permits. The Clean Air Act allows such petitions to be granted within 60 days after the end of EPA’s 45-day review period, even if EPA completes its review earlier than the 45-day deadline.
Last month, EPA issued another guidance document to expedite Title V permit renewals by making renewals faster and easier when no changes have been made from the previous permit.
