The US Environmental Protection Agency recently proposed a rule change that would formally repeal a 2008 rule and require all existing major industrial facilities to include “fugitive” emissions in preconstruction evaluations of major modifications for purposes of triggering New Source Review permitting.

On October 14, 2022, the Environmental Protection Agency (EPA) announced that it is proposing the repeal of regulatory amendments that were promulgated under the Clean Air Act (CAA) in 2008. Those amendments involved the role of “fugitive” emissions when deciding if a stationary source must apply for a Prevention of Significant Deterioration or Nonattainment New Source Review (collectively, New Source Review (NSR)) permit before initiating construction.

Major Source NSR applies to both construction of new major sources and major modifications of existing major sources. A major modification occurs when a physical or operational change “would result in (1) a significant emissions increase of a regulated NSR pollutant, considering emissions increases and decreases from the project alone, and (2) a significant net emissions increase of a regulated NSR pollutant, considering the project as well as other contemporaneous emissions increases and decreases at the source.” See, e.g., 40 CFR 52.21(b)(2)(i) and (b)(52).

The 2008 rule generally did not include “fugitive emissions” in the determination of whether a physical change to the source would be considered a major modification. According to the EPA, under 40 CFR 52.21(b)(20), “fugitive emissions” are “those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally-equivalent opening.” However, the 2008 rule amendments were stayed as part of the EPA’s reconsideration process, and the new rule changes proposed by the EPA would fully repeal them. Moving forward, fugitive emissions would now be included when determining if a modification is major.

The EPA touts its proposed rule change as seeking “to preserve the ability to evaluate all increases of air pollution at existing major sources, regardless of origin, consistent with the purposes of NSR.” However, industrial facilities have expressed concerns about the accuracy and ability to account for fugitive emissions.

The EPA will be accepting comments on the proposed rule change through December 13, 2022, and will hold a future virtual public hearing if requested by October 19, 2022. Interested parties should continue to monitor the status of the EPA’s proposed fugitive emissions rule and any potential future changes, as they may have significant implications with respect to NSR permitting moving forward.

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