Back on December 19, 2008, USEPA issued a final rule revising the requirements of the major NSR program regarding the treatment of fugitive emissions (‘‘Fugitive Emissions Rule’’). 73 FR 77882. The final rule required fugitive emissions to be included in determining whether a physical or operational change results in a major modification only for sources in industries that have been designated through rulemaking under section 302(j)of the Clean Air Act (CAA). The final rule amended all portions of the major NSR program regulations: Permit requirements, the PSD program, and the emission offset interpretive ruling. On February 17, 2009, the Natural Resources Defense Council submitted a petition for reconsideration of the December 2008 final rule. On April 24, 2009, USEPA responded to the February 17, 2009 petition indicating they were convening a reconsideration proceeding for the inclusion of fugitive emissions and granting a 3-month administrative stay of the rule contained in the PSD program. The letter also indicated that USEPA would publish a notice of proposed rulemaking‘ ‘in the near future’’ to address the specific issues for which they were granting reconsideration. The administrative stay of the Fugitive Emissions Rule became effective on September 30, 2009. See 74 FR 50115.
USEPA’s authority under section 307(d)(7)(B) to stay a rule or portion thereof solely under the Administrator’s discretion is limited to 3 months.
USEPA announced today (December 11, 2009, 74 FR 65692) they were making an interim final determination to provide an additional stay for 3 months. The 3-month stay that began on September 30, 2009 is to expire on December 30, 2009. At that time, facilities would be required to comply with the final rule as published [73 FR 77882] unless an additional stay is set in place. USEPA has now indicated its intent to publish a notice in the near future that will propose an additional stay of the Fugitive Emissions during the time period while USEPA reconsiders the rule. Since that proposed rule has not yet been published, any resulting final action that EPA takes will likely occur after December 30, 2009.