A November 26, 2012 decision by the Pennsylvania Environmental Hearing Board (EHB) in Berks County v. Pennsylvania Department of Environmental Protection (DEP) (EHB Docket No. 2010-166-L) could have a significant impact on air permitting for industrial facilities across the state. The case involved DEP’s issuance of a Title V permit for a secondary lead smelter operated by Exide Corporation in Berks County. The County challenged DEP’s issuance of the permit on the grounds that the Department had failed to consider the impact of fugitive emissions from the facility and, therefore, had not properly evaluated the potential air quality impacts from the facility. The EHB agreed and remanded the permit back to DEP to address the fugitive emissions.

Pennsylvania regulations (25 Pa. Code 123.1) prohibit the emission of fugitive air contaminants subject to certain specific identified exceptions, or if the DEP makes a determination that the emissions in question are of minor significance with respect to causing air pollution and do not interfere with the attainment or maintenance of an ambient air quality standard. In the Berks County case, the permittee did not request that DEP perform a significance evaluation of fugitive sources, and the DEP did not evaluate, and in fact admitted, that they did not know whether the emissions were significant. In fact, the only determination DEP made was that fugitive emissions from the facility were not visible beyond the property boundary. The EHB determined that the DEP cannot simply ignore the requirement of the regulation and assume that the fugitive emissions are not significant. The EHB remanded the permit in question with instructions to “determine what combination of estimating, modeling, and/or monitoring is necessary and appropriate to support a determination that fugitive emissions at the facility are of minor significance and not interfering with attainment.” The EHB also stated that if the fugitive emissions could not be quantified or estimated so that the Department could make a significance determination “then it follows that Section 123.1 cannot be met and it follows that the source cannot be permitted”.

This decision could potentially have far reaching impacts on future air permitting efforts for industrial facilities. The DEP has not, as a general rule, required permittees to obtain and submit information regarding fugitive emissions throughout a facility in order to obtain an air permit. The ruling by the EHB would seem to indicate that this will be required in the future. Parties seeking an air permit may be required to collect monitoring data, prepare computer models, or submit other information sufficient to allow the DEP to make a significance determination. This requirement could greatly increase the cost of permitting and possibly result in a requirement that the facility install control systems for fugitive emissions in order to reduce releases below a “significant” level.