DAQ-2024-010198

February 10, 1999
MEMORANDUM
SUBJECT:Interpretation of the Definition of Fugitive
Emissions in Parts 70 and 71
FROM:Thomas C. Curran, Director /s/
Information Transfer and Program
Integration Division (MD-12)
TO:Judith M. Katz, Director
Air Protection Division, Region III (3AT00)
This is in response to your memorandum of August 8, 1997
and subsequent discussions regarding the definition of
“fugitive emissions.” Specifically, you asked how this
definition applies to the emissions of volatile organic
compounds (VOC) from the printing industry, whiskey
warehouses, paint manufacturing facilities, and other similar
sources for purposes of title V. The delay in getting back to
you was principally due to extensive consultation as needed
among the various Headquarters and Regional Offices and has
resulted in more technically and legally supportable policy.
When counting emissions to determine if a source exceeds
the major source thresholds under title V (parts 70 and 71),
nonfugitive VOC emissions are always counted. Fugitive VOC
emissions, however, are counted only in certain circumstances.
Because of this, the determination of whether emissions are
fugitive or nonfugitive can be critically important for major
source determinations under title V.
The EPA defines “fugitive emissions” in the regulations
promulgated under title V as “those emissions which could not
reasonably pass through a stack, chimney, vent, or other
functionally-equivalent opening” (see title 40 of the Code of
Federal Regulations, sections 70.2 and 71.2). This definition
is identical to the definition of “fugitive emissions” adopted
by EPA in the regulations implementing the new source review
(NSR)
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1 See memorandums entitled “Classification of Emissions
from Landfills for NSR Applicability Purposes” from John S.
Seitz, Office of Air Quality Planning and Standards, to Air
Division Directors, Regions I-X, dated October 21, 1994, and
“Emissions from Landfills” from Gerald A. Emison, Director,
Office of Air Quality Planning and Standards, to David P.
Howekamp, Director, Air Management Division, Region IX, dated
October 6, 1987.
program. Given this, the precedents established in the NSR
program should be relied on in interpreting the definition of
“fugitive emissions” for purposes of title V.
In 1987 and again in 1994, EPA issued guidance regarding
the classification of emissions from landfills for NSR
applicability purposes.1 In these guidance memorandums, EPA
made clear that emissions which are actually collected are not
fugitive emissions. Thus, for example, when a source is
subject to a national standard requiring collection of
emissions, these emissions cannot be considered fugitive.
Whether or not a source is subject to such a national
standard, emissions which pass through a stack, chimney, vent,
or other functionally-equivalent opening are not fugitive.
Where emissions are not actually collected at a
particular site, the question of whether the emissions are
fugitive or nonfugitive should be based on a factual, case-by-
case determination made by the permitting authority. As noted
in EPA’s 1994 guidance,
In determining whether emissions could reasonably be
collected (or if any emissions source could
reasonably pass through a stack, etc.),
“reasonableness” should be construed broadly. The
existence of collection technology in use by other
sources in a source category creates a presumption
that collection is reasonable. Furthermore, in
certain circumstances, the collection of emissions
from a specific pollutant emitting activity can
create a presumption that collection is reasonable
for a similar pollutant-emitting activity, even if
that activity is located within a different source
category.
Based on the above principles, EPA believes it
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appropriate to presume that VOC emissions from the printing
industry and paint manufacturers could reasonably be collected
and thus are
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not fugitive. In addition, unless this presumption is
rebutted by the source, such emissions should be counted in
major source determinations.
We have reached this conclusion for printers and paint
manufacturers because certain printers are subject to national
standards and State implementation plan (SIP) requirements
(e.g., reasonably achievable control technology, best
available control technology, or lowest achievable emissions
rate) requiring collection. Moreover, sources in both of
these source categories commonly employ collection devices.
The common use of collection technology by other printing and
paint manufacturing sources creates a presumption that
collection of emissions is reasonable at other similar
sources.
In the case of whiskey warehouses, the presumption that
emissions could reasonably be collected is less compelling and
may warrant further consideration by States in consultation
with the EPA Regional Offices. For example, we are not aware
of any national standards or SIP requirements for the
collection of VOC emissions from whiskey warehouses, and we
believe it is uncommon for them to have voluntarily installed
collection devices. On the other hand, EPA is aware of
warehouses in other source categories that collect emissions
and thus a presumption is created that whiskey warehouse
emissions could reasonably be collected. In addition, in a
factual determination for a whiskey warehouse in the State of
Indiana, EPA Region V found, after careful review, that the
emissions of the warehouse were not fugitive.
In addition, you ask whether costs should be a factor
used to determine if emissions can be reasonably collected.
Obviously, when emissions are actually collected, cost
considerations are irrelevant to determine whether emissions
are fugitive. On the other hand, when a source does not
actually collect its emissions, but there is a presumption
that collection would be reasonable, a permitting authority
could consider costs in determining whether this presumption
is correct. However, when analyzing whether collection is
reasonable for a particular source, the permitting authority
should not focus solely on cost factors, nor should cost
factors be given any more weight than other factors. Instead,
the permitting authority should focus on determining whether a
particular source is truly similar to the “similar sources”
used to create the presumption. This determination can be
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made by looking at whether there are substantial differences
in the technical or engineering characteristics of the
sources. In this stage of the analysis, a comparison of the
costs of collecting emissions could be relevant where it
illustrates the underlying technical or engineering
differences. Moreover, keep in mind that title V does not
impose any requirements on subject sources to collect (or
control) their emissions and that collection is only assumed
for the purpose of determining title V applicability. Thus,
no source will ever be required to incur the costs of
installing, operating, or maintaining collection devices (or
control devices) because of a presumption that its emissions
are not fugitive or subsequently because it is found to be
subject to title V.
The approach for interpreting the definition of fugitive
emissions outlined in this memorandum is consistent with the
approach used historically by Headquarters, as well as the
majority of EPA Regions and States. We believe, therefore,
that the impact of this memorandum will be limited, both in
the number of sources for which reclassification of emissions
from fugitive to nonfugitive may be required, and to a greater
extent, in the number of sources subject to reclassification
from minor to major source.
We recognize that this interpretation may present
enforcement issues for an unknown (but presumably small)
number of sources whose initial title V applicability
determinations were overly broad with respect to which
emissions they have interpreted as being fugitive. Therefore,
EPA recommends that the following steps be taken. If the
policies of an EPA Region or State for interpreting the
definition of fugitive emissions are consistent with the
policies described in this memorandum, then the EPA Region or
State should continue to enforce its policies as it has in the
past. However, if the policies of an EPA Region or State have
not been as inclusive as the policies described in this
memorandum, then major sources that have not applied for
operating permits on the basis of these less-inclusive
policies should be instructed to immediately notify the State
and EPA Region in writing of their obligation to obtain a
title V permit. Such sources should be instructed to prepare
and submit permit applications to the appropriate permitting
authority as expeditiously as possible.
The EPA will use its enforcement discretion in deciding
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whether or not to seek an enforcement action against sources
for failure to obtain an operating permit. However, factors
that may be considered in deciding whether to seek enforcement
action against sources may include whether the sources relied
on less inclusive policies of a State or EPA Region and
whether the sources expeditiously submit permit applications
after they become aware of the national policy described in
this memorandum.
If you have any questions, please contact Steve Hitte at
919-541-0886 or Jeff Herring at 919-541-3195 of the Operating
Permits Group.
cc:Director, Office of Ecosystem Protection, Region I
Director, Division of Environmental Planning and
Protection, Region II
Director, Air, Pesticides, and Toxics Management
Division,
Region IV
Director, Air and Radiation Division, Region V
Director, Multimedia Planning and Permitting Division,
Region VI
Director, Air, RCRA, and Toxics Division, Region VII
Assistant Regional Administrator, Office of Partnership
and
Regulatory Assistance, Region VIII
Director, Air Division, Region IX
Director, Office of Air, Region X
bcc: L. Anderson, OGC
K. Blanchard, ITPID
D. Crumpler, ITPID
T. Curran, ITPID
R. Dresdner, OECA
G. Foote, OGC
J. Herring, ITPID
S. Hitte, ITPID
B. Hunt, EMAD
B. Jordan, OAQPS
R. McDonald, ESD
D. Salman, ESD
S. Shaver, ESD
J. Walke, OGC
L. Wegman, AQSSD
OAQPS/ITPID/OGC/JHerring:pfinch:MD-12:541-5281:12/4/98
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Herring\katz-fug.def