Legal requirements for proving the fugitive VOCs emissions defense to an alleged PSD permit violation: Developing admissible evidence and expert testimony on not reasonably pass through and industry practice
Except in specified circumstances, fugitive emissions of VOCs are not considered in determining whether a facility is a major source subject to the PSD permitting program. Violations of the permitting program may result in substantial fines and thus emitters charged with violating PSD permit requirements have a strong incentive to challenge the identification of their sites as major sources. Such a challenge will be greatly bolstered by identifying at least some of the emissions upon which the designation is based as fugitive. Developing persuasive, admissible evidence is necessary to prove the unreasonableness of collecting those emissions.