EPA May Repeal "Fugitive Emissions" Exemption from Air Programs

Posted on 10/17/2022 by Roger Marks

US EPA has proposed to repeal amendments to the Clean Air Act that exempt “fugitive emissions” from counting toward key permitting thresholds under two New Source Review (NSR) programs for existing major sources in some industry categories.    

If the amendments are repealed, all major sources will be required to include fugitive emissions when determining whether a facility modification is “major” or not under NSR.

Amendments to the Clean Air Act standards made in 2008 allowed source categories that are not listed in the regulations to exclude fugitive emissions from the “major modification” count (see “Fugitive Emissions Rule”, 72 FR 77882).

The proposed change will impact existing major sources of air pollution only. The proposed action will not change the way fugitive emissions are handled when making a “major source” determination.

EPA will accept public comments on the proposed rule until December 13, 2022. In the October 14 Federal Register, EPA also says that “If anyone contacts EPA requesting a public hearing by October 19, 2022, the EPA will hold a virtual public hearing.”

What Are Fugitive Emissions?

Under the New Source Review program, EPA defines “fugitive emissions” this way:

Fugitive emissions means those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening.

[40 CFR 51.166(b)(20)]

Volatile organic compounds (VOCs) leaking from pipes or equipment at a petroleum refinery is an example of fugitive emissions that EPA provides in its proposal (87 FR 62325).

Read More: What is a Major Modification Under New Source Review?

How Does This Affect New Source Review (NSR)?

Before a physical or operational change can be made at an existing major source facility, the business must consider additional pollution that the change will cause. A modification is considered a major modification if it will cause a “significant net increase” in emissions of a regulated NSR pollutant or pollutants.  

NSR regulated pollutants are the six “criteria pollutants” and their precursors—carbon monoxide, nitrogen oxides, sulfur dioxide, particulate matter, ozone (and VOCs), and lead.

Major modifications require a permit under the Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) programs. PSD and NNSR apply in areas designated as in attainment or in non-attainment of air pollution limits for NSR regulated pollutants, respectively.

If currently exempted major sources are required to count fugitive emissions in the future, and if those fugitive emissions cause a modification to exceed a threshold for any covered pollutant, a permit will be required before the modification can be made.

EPA May Repeal "Fugitive Emissions" Exemption from Air Programs

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If you’re new to the field or need an update on changing EPA rules, don’t miss Lion’s final Complete Environmental Regulations Webinar of the year on December 5—6.  

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Tags: air pollution, Clean Air Act, environmental compliance, fugitive emissions, New Source Review

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