July 30, 2026

EPA Proposes Minor New Source Review Public Participation Changes

On July 7, 2026, EPA proposed revising the public participation regulations applicable to state minor new source review (NSR) permitting programs. [91 FR 41591] Currently, the 40 CFR 51.161 regulations governing public participation requirements do not distinguish between the major and minor NSR programs. Consequently, state air agencies must provide 30 days for public comment before an NSR permit is issued, regardless of how minor a source or modification is. Now, EPA argues such a requirement is unnecessary.

The agency holds that under the framework of Loper Bright Enterprises et al. vs. Raimondo et al. [U.S. Supreme Court; Docket No. 22-451; June 28, 2024] (see our previous article), the best reading of CAA Section 110(a)(2)(C) [42 U.S.C. Section 7410(a)(2)(C)] is that it limits “EPA’s authority to impose specific regulatory requirements in determining what is ‘necessary’ for a minor source NSR program to satisfy statutory requirements such that it is approvable under CAA Section 110(k)(3) [42 U.S.C. Section 7410(k)(3)].” [91 FR 41599] In other words, there is no explicit statutory requirement for public participation in the minor source permitting process. Therefore, EPA says it must allow state and local air agencies to determine whether public participation is necessary.

The proposed rule would grant state and local air agencies the discretion to determine whether public participation, in the form of notice and comment, is required before issuing permits for the new construction of minor stationary sources and minor modifications. If a state air agency wants to adopt EPA’s proposed change, it would need to submit and have approved a revised state implementation plan (SIP) reflecting such a change—EPA’s proposal would not automatically change existing state minor NSR programs.

Only the minor NSR program’s public participation regulatory requirements would be amended by the proposed rule. The rule would not apply to the public participation requirements for:

Major nonattainment NSR [§51.165(i)]or prevention of significant deterioration permitting [§51.166(q)].
Plantwide applicability limits applied to existing major sources [§§51.165(f)(5), 51.166(w)(5), 52.21(aa)(5), and Part 51, Appendix S, section IV.K.5].
Title V operating permits [42 U.S.C. 7661a(b)(6)].
Tribal minor NSR programs in Indian country [§§49.157 and 49.171].
SIP development and submission requirements [Part 51, Appendix V].

The proposal would only amend the language in §51.161, and a redline strikeout of the amendments is available in the docket. Comments on the proposal may be submitted through August 21, 2026 via Docket ID No. EPA-HQ-OAR-2025-1212.

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This document addresses issues of a general nature related to the federal environmental regulations. Persons evaluating specific circumstances dealing with the environmental regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.