In October 2022, the Environmental Protection Agency (EPA) proposed to repeal an exemption for modifications that would be considered “major” solely due to the inclusion of fugitive emissions. If adopted, all existing major sources would be required to include fugitive emissions in determining whether a physical or operational change constitutes a “major modification”, thereby requiring a permit under the Prevention of Significant Deterioration (PSD) or Nonattainment New Source Review (NNSR) programs (Parts C and D of Title 1 of the Clean Air Act). The applicability of the PSD, NNSR and/or minor source NSR programs to a stationary source must be determined in advance of construction and is pollutant specific. For the purposes of major source NSR, fugitive emissions are defined as “emissions which could not reasonably pass through a stack, chimney, vent or other functionally equivalent opening”. Fugitive emissions may now be relevant to determining whether a source triggers major NSR in two ways:
- For purposes of determining whether a new or existing source is major, fugitive emissions are included in calculating a source’s emissions only if the source belongs to a source category specifically listed in the major NSR regulations (40 CFR 52.21(b)(1)(iii), such as petroleum refineries and Portland cement plants. This treatment of fugitive emissions is not changing with the proposed rule; and
- When determining whether a physical or operational change at a major source will result in a major modification, this proposed action will require that fugitive emissions be included in the determination for all existing major sources, regardless of source category. Once a source is subject to the major NSR program, fugitive emissions are treated the same as stack emissions in determining which requirements apply to a source, and includes all pollutants, not just the pollutant for which the source was classified as major.
Through this proposal, the EPA is seeking to realign the NSR regulations to better reflect the purpose of the NSR program and to end the regulatory uncertainty that has surrounded the treatment of fugitive emissions in the major modification context in the past. Although the impact of this proposal is likely limited, this requirement could result in more projects subject to major NSR permitting and installation of pollution controls, improving the air quality for all communities, particularly those located near major sources with a large proportion of fugitive emissions.
For more information, fill out our Contact Us form and we will get you in touch with an environmental consultant. You can also visit this summary fact sheet from the EPA about the proposal.