EPA Clarifies Allowable Construction Without An NSR Permit

On May 13, 2026, EPA published a proposed rule that would revise the New Source Review (NSR) air permitting regulations by clarifying that an owner or operator is not required to obtain an NSR permit to begin construction of the non-emitting components or structures of a proposed project. This proposed rule formalizes a return to a 2020 draft interpretation of the NSR regulations that was previewed in a September 2025 EPA letter to an Arizona permitting authority, wherein the EPA hinted at NSR changes with its interpretation of “begin actual construction.” If finalized, industry representatives say the rule will improve clarity in the Clean Air Act’s New NSR preconstruction permitting process, including Liskow attorney Greg Johnson, who recently spoke with Manufacturing Dive about the proposed revisions.

Some site preparation activities such as site-clearing and grading have always been allowed before obtaining an NSR permit. However, the EPA’s current definition for “begin actual construction” in the NSR regulations prohibits certain permanent on-site construction activities involving an emissions unit, including “the installation of building supports and foundations, laying underground pipework, and the construction of permanent storage structures.” Under the proposed rule, EPA would eliminate certain restrictions to allow construction of non-emitting project components before obtaining an NSR permit. To accomplish this, EPA is proposing to revise the current definition of “begin actual construction” and add a new definition of “pollutant-emitting activities” to identify which on-site construction activities stationary source owners and operators may lawfully undertake before obtaining an NSR permit.

“Begin Actual Construction”

EPA is proposing to define “begin actual construction” as the “initiation of physical on-site construction of pollutant-emitting activities on a stationary source.” This definition includes a non-exhaustive list of activities that fall outside its scope: 

• engineering and design planning;
• geotechnical investigation (surface and subsurface explorations);
• clearing vegetation, grading, surveying, soil compacting and stabilization (including associated pile driving), and excavating land (including blasting or other removal of hardrock);
• ordering of equipment and materials;
• storing of equipment or setting up temporary trailers to house construction management or staff and contractor personnel; and
• paving surfaces.

“Pollutant-Emitting Activities”

EPA is proposing to define “pollutant-emitting activities,” which would require the issuance of an NSR permit for construction to begin, to “include any equipment or component in a process or operation that emits or has the potential to emit a regulated NSR pollutant.” This definition does not include the following non-exhaustive list:

• office buildings;
• retail stores;
• buildings or structures designed for storage of materials not capable of producing airborne vapors or particles;
• concrete pads and building foundations, walls, and roofs that are not closed in on the interior side and do not have design elements configured to serve or support any equipment or process component that emits or may emit a regulated NSR pollutant;
• equipment or components whose sole purpose is heating ventilation and air conditioning for human workspaces or spaces within a building used to store supplies related to the habitation of the building;
• wiring, piping, and associated support structures that supply utility services to a property site or a building on a site; and
• sealed junctions or tie-ins within one process that may serve equipment or components in another process constructed at a later time.

Acceleration of Construction “At Their Own Risk”

While the proposed rule would speed up construction of certain elements of proposed projects, construction of those non-emitting components or structures would still be at the risk of the project proponent. As EPA puts it, this means that “the owner or operator assumes the risk that it will not realize a return on its investment in pre-permit construction of components or structures that do not emit air pollution if a permit application is ultimately denied or an issued permit requires additional construction to reduce air pollutant emissions.” In other words, EPA is emphasizing that investment in early construction activities will not ”alter or influence” ultimate permit decisions.

Comments on the proposed rule are due by June 29, 2026.

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