The U.S. Environmental Protection Agency (EPA) has issued a proposed rulemaking (Federal Register, Vol. 87, No. 198, Friday, October 14, 2022) that would address a 2008 Fugitive Emissions Rule that was subsequently granted reconsideration based upon a petition from the National Resources Defense Council (NRDC). The key issue is how fugitive emissions are considered under Section 111 of the Clean Air Act (CAA), as related to the definition of modification.
Modification means any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted. 42 U.S. Code § 7411(a)(4).
In 2008, the Bush EPA published its Fugitive Emissions Rule that sought to “reconsider” the inclusion of fugitive emissions under this language. Fugitive emissions are defined as:
Those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally-equivalent opening.
NRDC’s petition for reconsideration argued that the Bush EPA weakened the standard for determining major modifications by excluding fugitive emissions from major Prevention of Significant Deterioration (PSD) and non-attainment New Source Review (NSR) applicability.
The proposed rulemaking would result in a formal reversion to the pre-2008 language. EPA’s Director for its Office of Air Quality Planning & Standards (OAQPS) has indicated that the rule “would require fugitives to be counted in all new and modified major source determinations,” effectively ending the Bush-era limitations on counting of fugitive emissions.
The potential impact of EPA’s planned fugitive emissions rule may prove significant and is expected to affect a wide range of diverse industry sectors being impacted, such as power generation, oil & gas extraction, mining, paper mills, petroleum refining, chemical manufacturing, coatings operations, and solid waste facilities. In particular, both landfills and compost facilities can have significant fugitive emissions.
Based on our current understanding, the proposed rule will effectively eliminate the ability to exempt fugitive emissions under the current exemption in 40 Code of Federal Regulations (CFR) 52.21(i)(vii). This would mean that if a source is an existing major PSD or non-attainment NSR source for ANY pollutant, and modifies, then both non-fugitive AND fugitive emissions for ALL pollutants must be counted to see if the project is a major modification under PSD/NSR. Triggering a major modification would also mean that fugitive emissions are included in the various compliance elements of PSD or NSR (e.g., best available control technology [BACT], lowest achievable emission rate [LAER], modeling, offsets. etc.).
To add more context for landfills, as an example, if an existing landfill, which is already deemed major due to carbon monoxide (CO) or sulfur dioxide (SOx) emissions from flares (Potential to Emit [PTE] >250 tons per year [tpy]), conducts an expansion that will result in 15 tpy of new particulate matter less than 10 microns(PM10) [and/or 10 tpy of PM2.5] fugitive emissions from windblown dust, this would be a major modification under PSD, requiring BACT and modeling for fugitive PM. This could also include BACT and other requirements for fugitive methane as a regulated greenhouse gas (GHG) or volatile organic compounds (VOCs)/non-methane organic compounds (NMOCs) from the additional fugitive landfill gas (LFG) emitted from the expanded landfill. Compost facilities can also have significant VOC emissions, which could put them at risk from this rule change.
Public comment on the rulemaking ends on February 14, 2023, which is an extension of the previous deadline. The solid waste industry will provide comments through the Solid Waste Association of North America (SWANA) and the National Waste and Recycling Association (NW&RA). This will be the last chance to have any effect on the rulemaking. Otherwise, landfills and possibly compost facilities could face more stringent requirements under the PSD and NSR programs when it comes to fugitive emissions.