EHS Administration, Regulatory Developments

EPA Proposes Crackdown on Fugitive Emissions Exemptions

A proposed rule issued by the EPA on October 13, 2022, signifies the Agency’s intent to include additional large industrial sources in the requirements to account for “fugitive emissions” in determining whether a physical or an operational change at their facility is a “major modification,” which would need a major New Source Review (NSR) permit before starting construction.

“Fugitive emissions” are defined as emissions that could not reasonably pass through a stack, chimney, vent, or similar opening. They generally include “accidental emissions (pipeline breakage, coal seam fire, etc.), leaks and diffuse escapes (defective valves or seals, migration of gas to the surface near wells or mines, emissions from abandoned wells, etc.) and unintentional but non-productive discharges (mine ventilation, flaring, degassing, etc.),” according to a 2018 report by Climate Chance. The report categorized these types of emissions as “a blind spot in the fight against climate change.”


The NSR preconstruction permitting program was established as part of the 1977 Clean Air Act (CAA) amendments.

The major NSR program features two sets of rules:

  1. In areas that meet the National Ambient Air Quality Standards (NAAQS), the Prevention of Significant Deterioration (PSD) program ensures that new emissions will not cause air quality to deteriorate significantly and will continue to attain air quality standards.
  2. In areas that do not meet the NAAQS, nonattainment NSR (NNSR) ensures that new emissions do not slow progress toward cleaner air.

The major NSR program applies to both new major stationary sources of air pollution and major modifications to existing major stationary sources of air pollution. Determining whether a new stationary source is a “major source” or whether a modification is a “major modification” depends on whether a source’s emissions exceed certain thresholds. In certain circumstances, some emissions (for example, fugitive emissions) may not count toward those thresholds.

However, in 2008, the EPA finalized a rule that required only certain types of major stationary sources belonging to specifically listed source categories to include fugitive emissions toward major modification thresholds. These types of source categories include petroleum refineries, large fossil fuel-fired steam electric plants, and Portland cement plants, among others. Other types of sources were not required to include fugitive emissions toward these thresholds.  

Current actions and impacts

This proposed rule seeks to reconsider and repeal the 2008 rule, resulting in all existing major sources having to account for fugitive emissions when determining if modifications to their facilities would constitute a major modification and therefore require an NSR permit.

“Allowing large, existing sources of pollution to ignore increases in fugitive emissions when determining whether a project is a major modification, as the EPA did in its 2008 Fugitive Emissions Rule, could reduce the likelihood that projects would be subject to careful evaluation through the major NSR permitting process, notwithstanding significant increases in actual air pollution,” states the proposed rule.

“‘It doesn’t make sense to exclude fugitive emissions from new source permit regulations, since much of that pollution is released at ground-level and makes its way to nearby communities more directly,’ according to Eric Schaeffer, executive director of the Environmental Integrity Project,” reports Bloomberg Law. “‘The fenceline monitoring at refineries and chemical plants has already shown that emissions from those sources are much higher than the industry reports and that is almost certainly driven by leak rates that are undetected or unreported,’ he told Bloomberg Law in an email.”

This rule would also have significant impact on the state and local air pollution control agencies responsible for administering the NSR permitting program within their jurisdictions.

Comments on the proposed rule can be made under Docket ID # EPA–HQ–OAR– 2004–0014 at the Federal eRulemaking Portal until December 13, 2022.

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