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)

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 appropriate

to presume that VOC emissions from the printing industry and

paint manufacturers could reasonably be collected and thus are

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.
 3

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 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

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

Herring\katz-fug.def