R.E.M. track “Begin the Begin” starts A birdie and a hand for life’s rich demand. Well, regulated entities demanded, and the birdie delivered EPA’s proposed rule to revise the New Source Review (NSR) preconstruction permitting regulations and expand the scope of activities allowed prior to issuance of a NSR permit. The rule proposal redefines “begin actual construction” to allow certain non-emitting construction activities prior to permit issuance and introduces a new definition of “pollutant-emitting activities.”
1. The Shift
The traditional prohibition authored through EPA guidance beginning in 1978[1] then later promulgated in the NSR rules[2] disallowed activities of a “permanent nature” prior to issuance of a NSR permit. Subsequent determinations and memos evaluating case-by-case site specific facts led to a distinct prohibition in 1986 disallowing installation of an emission unit or any installation designed to accommodate the emission unit before issuance of a NSR permit. Then in the 1990s EPA considered ‘‘excavation activities’’ prohibited because they ‘‘are costly, they significantly alter the site, are an integral part of the overall construction project, and are clearly of a permanent nature.’’ Allowing costly and significant site clearing and alterations could predetermine permitting decisions, according to EPA at the time. Since at least 1996 NSR permittees and applicants encouraged EPA to address “begin actual construction” and reform its approach.
Recent decisions from EPA in 2020 and 2025 foreshadowed action to clarify and align EPA’s approach with statutory and policy directives.[3]
Now EPA draws on statutory language in the Clean Air Act — specifically terms like “stationary source” and “air pollutant” and “emits or has the potential to emit” — to discern what the Clean Air Act requires to permit, and terms like “construction” and “commenced” to discern when construction begins. EPA analyzes that the Clean Air Act permitting obligation attaches to stationary sources that emit air pollutants and the permitting obligation arises somewhere after planning but before operation.
2. The Birdie
EPA views the best reading of the CAA to be that an NSR permit is required “when” on-site physical construction begins on equipment or components that have characteristics that identify them as something that will emit air pollution, as distinguished from equipment or components that will not.[4] Accordingly, the proposed definition of “being actual construction” prohibits the initiation of physical construction of pollutant-emitting activities. Preconstruction activities such as design, site preparation, equipment ordering, and staging still do not require issuance of a NSR permit. The proposed revision to the term “begin actual construction” reads:
Begin actual construction means, in general, initiation of physical on-site construction of pollutant-emitting activities on a stationary source. This does not include the following: (1) Engineering and design planning; (2) geotechnical investigation (surface and subsurface explorations); (3) clearing vegetation, grading, surveying, soil compacting and stabilization (including associated pile driving), and excavating land (including blasting or other removal of hardrock); (4) ordering of equipment and materials; (5) storing of equipment or setting up temporary trailers to house construction management or staff and contractor personnel; (6) paving surfaces. This list is not intended to be exhaustive. With respect to a change in method of operations, this term refers to those on-site activities other than preparatory activities which mark the initiation of the change.
3. The Tie
EPA proposes a new definition for “pollutant-emitting equipment” too. And it’s long:
Pollutant-emitting activities, as used in 40 CFR 52.21(b)(6)(i) and (b)(11), include any equipment or component in a process or operation that emits or has the potential to emit a regulated NSR pollutant. Pollutant-emitting activities do not include the following: (1) office buildings; (2) retail stores; (3) buildings or structures designed for storage if the product or material to be stored therein is not capable of producing airborne vapors or particles; (4) concrete pads and building foundations, walls, and roofs that are not closed in on the interior side and do not have design elements (e.g., piping, ductwork, wiring, anchor bolts) specifically and uniquely configured to serve or support any equipment or component in a process or operation that emits or has the potential to emit a regulated NSR pollutant; (5) 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; (6) wiring, piping, and associated support structures that supply utility services (including electrical, water, wastewater, or telecommunications) to a property site or a building on a site; (7) sealed junctions or tie-ins within one process that may serve equipment or components in another process constructed at a later time. This list is not intended to be exhaustive. For purposes of this definition, classification as pollutant-emitting is based on emissions from a process or operation after construction, not emissions of pollutants during the construction process.
4. The Risk
If finalized, Permit applicants can proceed with a broader set of construction activities before issuance of a NSR permit, but at their own risk. Explicitly, EPA states:
In all instances, owners or operators accept risk for the actions they may take in advance of obtaining a permit. Owners or operators cannot expect that any site activities prior to permitting will alter or influence the BACT analysis for an emissions unit or other elements of a permitting decision. Permit applicants that choose to undertake on-site construction activities in advance of permit issuance do so at their own economic risk that a permit may be denied or issued with unanticipated conditions on operations, potentially resulting in a lost investment or increased construction costs.[5]
Practical Improvements
EPA offers a practical approach to owners and operators that may help expedite completion of projects and avoid site-specific inquiries to permitting agencies regarding what and when activities can commence. The proposal could allow greater flexibility in project and construction timing, particularly for large industrial projects; however, EPA reinforces the inherent risk that early-stage investments may be lost if permits are denied or require redesign. The rulemaking prompts decisions from applicants about the economic risk they are willing to bear that a NSR permit application is denied or that a project cost is impacted by obligations to comply with an issued permit.
Public Comment Opportunity
Comments on the proposed rule are due June 29, 2026. EPA sets out eleven questions to solicit comments on the approach, plus any aspect of the proposed rule.[6] The proposed rule modifies non-attainment and attainment programs and the term “commence construction” in the federal minor NSR regulations for Indian country.
[1] ‘‘Interpretation of ‘Constructed’ as it Applies to Activities Undertaken Prior to Issuance of a PSD Permit’’ from Edward Reich, Director, Division of Stationary Source Enforcement (December 1978).
[2] Definition of ‘‘begin actual construction’’— 40 CFR 51.165(a)(1)(xv), 5
[3] EPA Draft Memorandum from Anne Idsal, Principal Deputy Assistant Administrator for the Office of Air and Radiation. Interpretation of ‘‘Begin Actual Construction’’ Under the New Source Review Preconstruction Permitting Regulations (2020); EPA Letter from Aaron Szabo, EPA Assistant Administrator for the Office of Air and Radiation, to Philip McNeely, Director, MCAQD, (2025).
[4] 91 Fed.Reg. 26958, 26970 (May 13, 2026)
[5] 91 Fed.Reg 26858, 26973 (May 13, 2026)
[6] 91 Fed.Reg. 26958, 26974 (May 13, 2026)