EPA Proposes to Let Builders Start Non-Emitting Construction Before NSR Air Permits

The Environmental Protection Agency proposed revisions to its New Source Review air permitting regulations on May 13, 2026.

The proposal affects owners and operators of new major stationary sources or major modifications to existing major stationary sources that trigger Nonattainment New Source Review or Prevention of Significant Deterioration requirements under the Clean Air Act.

It also applies to sources subject to Federal minor NSR regulations in Indian country. The 19-page notice, signed by President Donald Trump and identified as regulation ID 2060-AW84, runs 19 pages and carries significant status.

The rule would change the definition of "begin actual construction" in the Federal NSR regulations for both NNSR and PSD programs. It would add a new definition of "pollutant-emitting activities" while clarifying that construction of non-emitting components or structures can occur before an NSR air permit is obtained.

Parallel changes would revise the definitions of "begin construction" and "commence construction" in the Federal minor NSR regulations applicable in Indian country. The proposal also addresses applicability procedures for "begin actual construction" in the NNSR regulations.

These changes have no stated effective date because the document is a proposed rule; the public comment period closes on June 29, 2026.

Downstream, project developers can schedule and begin site work on non-emitting elements such as foundations, roads, and administrative buildings while permit applications remain under review. State and tribal permitting authorities must incorporate the revised definitions into their implementation plans once finalized.

The EPA will review all comments received by the June 29 deadline before issuing a final rule. Industry sectors required to obtain NSR permits, including power generation, manufacturing, and refining, gain earlier certainty on construction timelines that currently halt all physical work until permit issuance.

This proposal modifies the existing NSR preconstruction permitting framework that has required owners and operators to obtain permits and begin actual construction only after all approvals. The Federal Register notice states the revisions update and codify distinctions between emitting and non-emitting activities.

The original NSR regulations trace to the 1977 Clean Air Act amendments and have been revised multiple times, including under prior administrations.