On October 28, 2026, the Georgia Environmental Protection Division (EPD) Air Protection Branch issued a memorandum titled Guidance on Pre-Permit Construction Activities at Minor NSR Facilities in Georgia. The memo clarifies which construction activities a facility may undertake before receiving a new or modified minor source New Source Review (NSR) construction permit and which activities are off-limits until the permit is issued. The guidance is effective immediately and supersedes all previous Air Protection Branch guidance, directives, and interpretations on the topic. For facilities managing tight construction schedules, the memo draws a clearer line between site work that can proceed while a permit application is under review and work that EPD will treat as unauthorized construction.
Background
Georgia Rule 391-3-1-.03(1)(a) requires that “[a]ny person prior to beginning the construction or modification of any facility which may result in air pollution shall obtain a permit for the construction or modification of such facility from the Director.” Because the rule does not spell out where permissible site preparation ends and “construction” begins, facilities have frequently asked EPD what work can move forward before a permit is in hand. EPD issued this memo so that permitting staff communicate a clear and consistent answer to those questions.
The guidance applies only to minor source NSR permitting. It does not apply to major source NSR, including Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) permitting, where the federal definition of “begin actual construction” continues to govern. Separately, EPA proposed revisions to that federal definition in May 2026 that would allow more pre-permit activity for major NSR projects, as discussed in a previous Trinity article. Georgia’s memo is independent of that federal rulemaking and addresses minor source projects only.
What Is Not Allowed Before Permit Issuance
The memo states that facilities are strictly prohibited from placing any emissions-producing equipment in its final location before an air permit is issued. A facility may not build, install, or position any machinery, processing units, or control equipment that has the potential to emit regulated air pollutants and that requires an air permit. EPD specifically identifies staging or anchoring such equipment on its final foundation prior to permit issuance as unauthorized construction.
What Is Allowed Before Permit Issuance
The memo makes clear that certain site work can move forward while a minor NSR permit application is pending depending on whether the work directly involves or supports installing an emissions unit. In general, facilities may:
- Prepare the site and build out general infrastructure. This includes clearing, grading, excavation, roads, parking, perimeter fencing, and utility connections (water, sewer, power). Fuel supply lines for natural gas, diesel, or gasoline are expressly included.
- Construct non-process and certain process buildings. Offices, warehouses, and storage buildings are fine. Process buildings can also go up, but only if the building isn’t effectively part of the emissions unit, such as when the structure itself supports the equipment.
- Pour foundations. Concrete pads and foundations may be poured, including embedded anchor points that will later secure the equipment.
- Buy and receive equipment. Emissions units may be ordered and delivered, but they must be stored away from their final location and must not be able to operate. Setting or anchoring equipment on its final foundation before the permit is issued counts as unauthorized construction.
Pre-Permit Work Is at the Facility’s Own Risk
EPD emphasizes that any activities undertaken before permit issuance are done entirely at the facility’s own risk, and that pre-permit work does not guarantee or influence the final permitting decision. If the issued permit requires different equipment, additional control devices, revised stack configurations, or other design changes, foundations, utilities, and buildings completed early may need to be modified at the facility’s expense.
What This Means for Georgia Facilities
The guidance gives project teams more certainty when planning early site work. Key takeaways include:
- Sequence the schedule around equipment setting. The clearest line in the memo is the equipment itself. Site work, buildings, utilities, and foundations can generally proceed, but setting or anchoring emissions units in their final location must wait for the permit.
- Evaluate process buildings carefully. Where a building’s structure supports or is integral to an emissions unit, its construction may be considered part of the unit. Facilities should evaluate these situations case by case and discuss uncertain cases with EPD before proceeding.
- Plan a staging area for delivered equipment. Equipment delivered before permit issuance should be stored away from its final location and should not be connected or otherwise capable of operating.
- Confirm the permitting pathway early. The guidance does not apply to projects subject to PSD. Facilities should confirm early whether a project is minor or major for NSR purposes and whether it qualifies for an exemption under Rule 391-3-1-.03(6).
- Communicate with contractors. Construction managers and engineering, procurement, and construction (EPC) contractors should understand the limits on pre-permit work so that equipment is not set prematurely.
- Remember other approvals. The memo addresses air permitting only. Construction stormwater coverage, local land disturbance and building permits, and other approvals still apply.
How Trinity Can Help
Planning a new facility or expansion in Georgia? Trinity Consultants can help evaluate air permit applicability, prepare construction permit applications to Georgia EPD, review planned pre-permit activities against the new guidance, and align construction sequencing with permit timing. Reach out to Trinity’s Atlanta office at 678.441.9977 or contact Katie Brubaker.
