EPA Moves to Redefine 'Begin Actual Construction' in NSR Permitting Rules
On May 11, 2026, the EPA proposed changing how 'begin actual construction' is defined under NSR permitting rules.
Why it matters: The revised rule could let infrastructure projects start non-emitting work—like site prep—before final permits, impacting how legal teams advise clients on compliance risk and construction timing. Early activity could reduce costly delays but raises questions about clear regulatory boundaries.
- EPA Administrator Lee Zeldin announced the NSR permitting proposal on May 11, 2026.
- The change allows certain non-emitting site activities—such as installing pads or wiring—before permit approval, clarifying current ambiguity.
- EPA aims to define both 'begin actual construction' and 'pollutant-emitting activities' in regulation.
- A 45-day federal public comment period will open following publication, inviting feedback from industry and environmental advocates.
The EPA's proposed rule, announced by Administrator Lee Zeldin, seeks to streamline New Source Review (NSR) permitting by clarifying what it means to 'begin actual construction.' Historically, the NSR required permit approval before any physical onsite work could start—sometimes delaying major infrastructure or industrial projects due to regulatory ambiguities.
- The updated definition would allow certain non-emitting activities, such as laying concrete pads, running electrical wiring, and installing piping, to begin before a permit is granted. Emitting construction work—activities directly producing regulated pollutants—would still require prior approval, maintaining air quality safeguards.
- A new definition for 'pollutant-emitting activities' would also be added, distinguishing activities subject to NSR permitting from preparatory work.
- Zeldin stated the proposal "addresses issues that have held up critical American infrastructure and removes barriers while upholding environmental safeguards."
- The 45-day public comment period will allow legal professionals, industry stakeholders, and environmental groups to offer input.
Some environmental advocates and legal experts note the proposal may reduce permitting delays but caution that the distinction between emitting and non-emitting activities could spark future enforcement or compliance disputes. In a bulletin, Covington & Burling attorneys observed that regulatory clarity may benefit clients, but "robust guidance and enforcement protocols will be key to preventing abuses and confusion in implementation."
The NSR program under the Clean Air Act requires pre-construction permits for new and modified stationary sources of air pollution. Changes to foundational definitions could significantly impact project timelines, risk assessments, and contract structuring for clients subject to federal air rules.
By the numbers:
- 45 days — length of public comment period for the EPA proposal.
- 1977 — year the Clean Air Act Amendments established NSR permitting.
Yes, but: Some legal analysts caution that unclear lines between non-emitting and emitting activities could trigger compliance disputes or enforcement actions.
What's next: The 45-day comment period will open upon publication in the Federal Register, after which EPA may revise the rule based on stakeholder feedback.