The U.S. Environmental Protection Agency (EPA) has issued new guidance under its New Source Review (NSR) preconstruction permitting program that could allow power plant developers to begin certain non-emissions‐related site work—such as installing concrete pads, grading, and utility trenching—before obtaining a Clean Air Act construction permit. The change, described in a sparse set of paragraphs published on the agency’s website on Sept. 10, is designed to shave months off project timelines for power generation, data centers, and reshored manufacturing facilities.
EPA Administrator Lee Zeldin said the guidance clarifies when “actual construction” begins under NSR, distinguishing emissions-unit work from broader site activities that do not affect air emissions. By defining which early-stage tasks fall outside the permitting trigger, the EPA seeks to reduce regulatory delays that have long hindered the build-out of essential infrastructure and to bolster U.S. competitiveness in artificial intelligence (AI), energy, and advanced manufacturing, he suggested.
The agency is expected to follow up with a formal rulemaking in early 2026 to revise the regulatory definition of “Begin Actual Construction” in 40 CFR § 52.21 and codify the distinction between emissions units and other parts of a facility.
The EPA says it will continue issuing case-by-case guidance in the interim.
A Few Words to Describe a Big Change
The Clean Air Act’s New Source Review program requires major stationary sources of air pollution, including power plants and industrial boilers, to obtain preconstruction permits before beginning emission-related construction or modifications. Historically, the review process has been considered “very complex,” a murky framework shaped by decades of lawsuits, political battles, and shifting regulatory interpretations—so much so that, as POWER noted in 2008, even standard operation and maintenance projects have sometimes been treated as potential NSR violations, leaving utilities wary that “a little paranoia about NSR might just be prudent.”
Typically, the EPA and delegated state agencies have interpreted “begin actual construction” to encompass nearly all on-site work of a permanent nature, even when unrelated to emissions units. However, that has caused some uncertainty over whether activities such as site grading, foundation pouring, and equipment staging require a permit.
The Code of Federal Regulations currently defines “begin actual construction” as the “initiation of physical on-site construction activities on an emissions unit which are of a permanent nature. Such activities include, but are not limited to, installation of building supports and foundations, laying underground pipework and construction of permanent storage structures” (40 CFR §52.21(b)(11)). As they apply to a change in the method of operations, the term covers “on-site activities other than preparatory activities which mark the initiation of the change.”
Under the new guidance, preparatory activities that do not involve the physical construction of an emissions unit—defined as any apparatus that emits or controls emissions—may proceed without an NSR permit, provided they pose no air-quality risk. Authorized tasks include soil stabilization, installation of access roads, laydown yards, precast foundation elements, and installation of non-emitting equipment such as concrete pads and underground piping.
According to the EPA, the clarification is part of Administrator Lee Zeldin’s Powering the Great American Comeback initiative launched in February and is intended to “expedite construction of essential power generation and industrial facilities.” The agency said its actions will help permitting authorities “properly distinguish between emissions units and other parts of a facility that are not an emissions unit or part of an emissions unit,” ensuring that developers understand which activities can advance without a permit and which must remain on hold until a permit is issued.
“For years, Clean Air Act permitting has been an obstacle to innovation and growth,” Zeldin said on Tuesday. “We are continuing to fix this broken system. Today’s guidance is another step to allow the build out of essential power generation, data centers, and manufacturing projects that will bring about America’s Golden Age.”
Aligned with the Trump administration’s policies, Zeldin has championed more than $90 billion in energy and industrial investments announced at the Pennsylvania Energy & Innovation Summit in July. In a Fox News op-ed following that event, Zeldin underscored the EPA’s commitment to “clear the regulatory path” for data centers and manufacturing facilities that support America’s AI leadership while maintaining environmental safeguards.
—Sonal Patel is a POWER senior editor (@sonalcpatel, @POWERmagazine).
