EPA has the fugitive emissions rule under reconsideration. The CAA does not really detail how to deal with fugitive emissions. The court case in 1979 did not really resolve the issue. That was followed by some unfortunate rule making and guidance under New Source Review that further confused the issue. New Source Review includes Non-Attainment New Source Review and Prevention of Significant Deterioration (PSD). EPA is proposing to eliminate the mid-2008 “Fugitive Emissions Rule” and eliminate a source of confusion. The rule was stayed in 2009 and remains stayed.

There was also another exclusion that was part of the original rule. The definition of a Major Source is not being changed. A listed source must include fugitive emissions in its potential to emit. There are 29 listed source categories. The problem is with “unlisted” sources. If not on the list, a source becomes major if the potential to emit is greater than 250 tons/yr. Title III, Section 302(j) mentions fugitive emissions. The list comes from Title I, Part C, Section 169. However, this portion does not mention fugitive emissions. Nor does it consider modifications. The court decision stated that EPA could not count fugitive emissions in a facility’s total emissions unless that facility went through rule making, particularly for modifications. A major modification is any physical change that would result in a significant emissions increase. Unfortunately, that definition came from the NSPS section of the CAA. That does not include fugitive emissions. Fugitive emissions have historically been excluded when dealing with unlisted source categories. In 2002, the PSD rule was modified to include fugitive emissions at unlisted source categories. This rule was amended in 2008 with some new clauses. These were stayed during the Obama administration and remain stayed today. Another part of the 2008 rule excludes fugitive emissions if such inclusion would be the only reason that a source would become a major source.

In October, the EPA proposed to rescind the 2008 rule and proposed to remove the exclusion further down in the CAA. The comment period ends Feb. 2023. In other words. EPA wants to include fugitive emissions for practically everything. The definition of fugitive emissions basically states that such emissions “could not reasonably be vented through a stack” (i.e. become a point source). Further, EPA states that the cost to control such emissions (not collect and subsequently vent) should not be a consideration. A coalition has been formed to comment to EPA.

Jay Hofmann, Trinity Consultants, Inc.