Fugitive Emissions Under PSD

There are typically two basic questions with regard to fugitive emissions under the PSD program; 1) What is a fugitive emission, and 2) When do I have to include fugitive emissions when determining applicability.

What is a fugitive emission?

40 CFR 51.166(b)(20) defines "fugitive emissions" as "those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening."

Determining whether an emission is fugitive requires a case-by-case analysis. However, an emission should not be considered non-fugitive simply because is passes through a stack, chimney, vent, or other functionally equivalent opening. The touchstone in determining whether an emission is fugitive is whether the emissions can be reasonably collected.

The preamble to the U.S. EPA's original 1980 promulgation of the definition for "fugitive emissions" states:

        EPA has considered comments with respect to the proposed definition of "fugitive emissions," and has
        determined that one change is appropriate. Instead of defining fugitive emissions as "those emissions which
        do not pass through a stack, chimney, vent, or other functionally equivalent opening," EPA believes that the
        term should apply to "those emissions which could not reasonably pass through a stack, chimney, vent, or
        other functionally equivalent opening." This change will ensure that sources will not discharge as fugitive
        emissions those emissions which would ordinarily be collected and discharged through stacks or other
        functionally equivalent openings, and will eliminate disincentives for the construction of ductwork and stacks
        for the collection of emissions. Emissions which could reasonably pass through a stack, chimney, vent, or
        other functionally equivalent opening will be treated the same as all other point emissions for threshold
        calculation purposes.

45 Fed.Reg. 52692-93 (Aug. 7, 1980).

Other factors that the NCDAQ will consider in making a fugitive emissions determination include whether other similar facilities collect, capture, or control the same pollutant, and the cost to both collect and control the emissions, the quantity of emission, and the ambient impact of the emissions.

When Do I Include Fugitive Emissions in Determining Applicability?

The issue of when fugitives are to be included in determining applicability is a complex issue and depends, in part, on whether the project under consideration is the construction of a new greenfield major stationary source or a modification to an existing source.

For new stationary sources, fugitives need only be included in determining the facility's potential to emit if it is one of the source categories listed under 40 CFR § 51.166(b)(1)(iii). Note that this list includes any stationary source category which, as of August 7, 1980, is being regulated under section 111 [NSPS] or 112 [NESHAPs] of the Clean Air Act.

For modifications to existing stationary sources, the 2002 NSR Reform Rule, adopted by NCDAQ, requires fugitive emissions, to the extent quantifiable, to be included in determining whether a physical or operational change is a major modification. In December 2008 the EPA issued a final rule changing this provision to be consistent with the Clean Air Act and requiring fugitives to be included only if it is one of the source categories listed under 40 CFR § 51.166(b)(1)(iii). However on April 24, 2009 the EPA issued a three month stay on the December 2008 rulemaking. http://www.epa.gov/nsr/documents/NRDC.pdf To the extent that PSD applicability for a modification depends on the inclusion of fugitive emissions, the NCDAQ recommends that applicants request clarification before submitting permit applications.

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