Fugitive greenhouse gas emissions and Prevention of Significant Deterioration program applicability

Vol. 45 No. 6

Leslie Cook Wong, Golder Associates, Inc.’s Regulatory & Sustainability Director, is a licensed attorney (Texas) and experienced environmental professional in the areas of regulatory analysis, sustainability program development, greenhouse gas management, and advanced air permitting and waste services.

Fugitive emissions do not typically present a significant challenge in Prevention of Significant Deterioration (PSD) applicability determinations for a new air emissions source or a modification to an existing air emissions source. However, little in the PSD program has been typical since the 2010 implementation of the PSD and Title V Greenhouse Gas (GHG) Tailoring Rule (the “Tailoring Rule”). 75 Fed. Reg. 106, June 3, 2010. Fugitive emissions are the fraction of emissions that evade a source’s implemented emissions control efforts, and, by definition, they can neither be measured nor controlled. (Fugitive emissions are “those emissions which could not reasonably pass through a stack, chimney, vent or other functionally equivalent opening.” See, 40 C.F.R. §§ 70.2, 70.1, and Memorandum on Interpretation of the Definition of Fugitive Emissions in Parts 70 and 71 from Thomas C. Curran, Director, Information Transfer Program and Integration Division to Judith M. Katz, Director, Air Protection Division, Region III, dated Feb. 10, 1999. Application of a PSD-mandated Best Available Control Technology (BACT) analysis to a form of emissions that, by definition, can be neither measured nor controlled, if not one of the “absurd results” ostensibly avoided by the Tailoring Rule, is certainly a challenge, the response to which strains the definition and implementation of a BACT analysis. While an obscure exemption in the PSD regulations, 40 C.F.R. § 52.21(i)(vii), has prevented this specific absurd result from being implemented, PSD applicability to fugitive GHG emissions is problematic and illustrates the difficulty associated with regulating GHGs under an air program not originally designed to address this class of emissions.

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