EPA Proposes To Revise The “Begin Actual Construction” Definition And Publishes Guidance On Streamlining Title V Operating Permit Reviews

The United States Environmental Protection Agency (“EPA”) is proposing to change the definition of “begin actual construction” for Clean Air Act (“CAA”) New Source Review (“NSR”) permitting. EPA also published guidance on streamlining Title V operating permit reviews. EPA’s goal in both the revised definition proposed rule and the Title V operating permit review guidance is to ease permitting burdens on industry and speed permitting review for permitting authorities.

NSR Permitting

Under the CAA, emitting sources are required to obtain an NSR permit prior to constructing (1) new stationary sources and (2) major modifications to existing major stationary sources. NSR permitting has the potential to cause project delays because sources cannot begin construction until the source obtains a permit. The CAA NSR permitting regulations define “begin actual construction” as constructing anything associated with emission units that is permanent and includes building support, foundation, underground piping, and storage structures.

Proposed New Definition

EPA is proposing to change the definition of “begin actual construction” and “commence construction” to only include “pollutant-emitting activities” on stationary sources. The proposed definition goes on to list activities that are excluded, like excavating, grading, and paving. EPA is seeking comments on whether additional activities should be included in this list.

EPA is also proposing to define “pollutant-emitting activities” to include any equipment or component that emits or has the potential to emit regulated NSR pollutants. The definition also lists activities that are excluded from the definition, like concrete pads; heating, ventilation, and air conditioning systems; utility wiring; and storage structures. EPA is seeking comments on whether additional activities should be included in this list.

EPA states that the revised definition will allow data centers, power plants, and manufacturing plants greater construction flexibility while still protecting public health and welfare.

One thing to note, developers beginning construction on components excluded from NSR permitting is “at their own risk.” If the permitting authority denies an NSR permit application, for example, the prior construction of excluded components might be for nothing if the project is ultimately canceled because of permitting issues. If the permitting authority approves an NSR permit application with changes, the prior construction of excluded components might need to be partially demolished to conform the project to the approved new permit terms.

If the new definition is finalized as proposed, the benefits would be three-fold. First, EPA would provide sources with additional clarity on a currently vague definition. Second, EPA would allow sources to start construction on non-emitting components of the project while the permitting authority is reviewing the permit application. Third, the scope of the permit would be smaller, allowing permitting authorities to review and approve NSR permits faster.

Title V Operating Permitting

The CAA requires the permitting authority to provide the public with 30 days to comment on draft Title V operating permits. The CAA provides EPA with 45 days to review and object to a permitting authority’s draft Title V operating permit. The CAA gives the public 60 days to petition EPA to object the draft Title V operating permit. The 60-day period starts after the 45-day period.

Title V Operating Permit Review Guidance

EPA published guidance on streamlining Title V operating permitting reviews through two major timeline changes. First, EPA can review a permitting authority’s draft Title V operating permit while the draft permit is going through the public comment period. Permitting authorities can simply submit the same document that is undergoing public comment to EPA. EPA will consider the draft Title V operating permit as the proposed permit.

Second, permitting authorities can finalize a Title V operating permit before EPA’s 45-day review period concludes. EPA reminds us that it has discretion on which permits it thoroughly reviews. If EPA knows it will not object to a proposed permit, EPA will tell the permitting authority before the 45-day review period concludes.

If the permitting authority receives significant public comments on a draft Title V operating permit, it must respond to those comments, revise the draft permit as needed, and resubmit it to EPA. Because EPA has already reviewed the permit, however, its subsequent review should be limited to the portions revised in response to public comments. EPA does not expect this second review to take the full 45 days.

In addition, EPA’s guidance notes that regardless of how soon EPA makes its decision on a draft permit, the public still has 60 days to petition EPA after the full 45 days it had to make a decision.

This Title V operating permit review guidance follows EPA’s guidance published last month on Title V operating permit renewals. EPA’s goal on both guidance documents is to expedite Title V operating permitting.

Timing

EPA published the Title V operating permit review guidance on May 11, 2026. EPA published the revised definition proposed rule in the Federal Register on May 13, 2026. Comments are due by June 29, 2026.

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