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United States: EPA Proposes Rule That Could Allow Major Industrial Sources to Begin Pre-Permit Site Work
- #EHS
- #Environmental Protection Agency (EPA)
- #EPA
On May 13, 2026, the U.S. Environmental Protection Agency (EPA) published a proposed rule that, if finalized, would allow major industrial operators to begin certain non-emitting site preparation activities before obtaining a federal air construction permit.
This would be a significant practical shift for facility development timelines.
The proposal targets major stationary sources of air pollutants subject to the Clean Air Act’s New Source Review (NSR) preconstruction permitting program. EPA will accept public comments until June 29, 2026.
On May 13, 2026, the U.S. Environmental Protection Agency (EPA) published a proposal that would allow certain industrial operators to begin non-emitting site activities prior to obtaining a required federal air permit. This proposed rule would not modify emission thresholds, Best Available Control Technology (BACT) or Lowest Achievable Emission Rate (LAER) requirements, or any other substantive permitting criteria under the NSR program. The obligation to obtain an air permit before commencing emission-related construction remains fully intact.
Under the Clean Air Act’s NSR program, any owner or operator planning to build a new major industrial facility, or make a major modification to an existing one, must obtain an air construction permit before breaking ground. This applies to large emitters across a wide range of sectors, including power generation, manufacturing, oil and gas, and data centers. Currently, this pre-permit prohibition applies broadly to any permanent physical construction activity on-site. The proposed rule would narrow its scope.
What would change
The EPA would introduce a new defined category — “pollutant-emitting activities” — to distinguish construction work that must wait for a permit from work that could proceed earlier. Only activities that are directly and specifically tied to an emission-generating process would trigger the pre-permit prohibition.
As a result, the following activities would be permitted to proceed before the air permit is issued :
- Land clearing, grading, excavation, and site stabilization
- Paving
- Construction of office buildings and non-industrial structures
- General concrete pads, foundations, walls, and roofs (unless uniquely designed to support emissions-generating equipment)
- HVAC systems and utility connections
- Installation of construction management trailers
Any equipment or structure specifically and uniquely configured to support an emissions-generating process would still require a valid permit before work may begin. EPA stresses that operators who proceed with pre-permit construction activities do so entirely at their own financial risk. If a permit is ultimately denied, or issued with conditions that require design changes, any prior investment in pre-permit construction carries no legal protection and cannot be used to influence permitting authorities’ decisions.
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