On December 31, 2002, EPA issued a final New Source Review (NSR) Improvement Rule that, among other items, requires all sources to include fugitive emissions in assessing whether a proposed physical or operational change qualifies as a major modification.  On July 11, 2003, Newmont USA Limited (Newmont) submitted to EPA a petition for reconsideration, arguing that the final rule failed to comply with the Clean Air Act (CAA) requirement that EPA conduct rulemaking to list source categories for which fugitive emissions must be included in determining whether a source is major.   

With this November 13, 2007 federal register, EPA has proposed to revise the December 2002 rule.  EPA proposes to reverse their existing policy, and include fugitive emissions in determining whether a physical or operational change is a major modification only for sources in source categories listed in 302(j) of the CAA.   EPA thus proposes to use the same approach to fugitive emissions for both major source determination and major modification determination.