Section 326 IAC 20-13-9 - Affirmative defense to civil penalties for exceedance of emissions limit during malfunctionAuthority: IC 13-14-8; IC 13-17-3-4; IC 13-17-3-11
Affected: IC 13-15; IC 13-17
Sec. 9.
(a) In response to an action to enforce the standards set forth in this rule, the owner or operator of a secondary lead smelter may assert an affirmative defense as defined in 326 IAC 20-13.1-2 to a claim for civil penalties for exceedances of the standards that are caused by malfunction, as defined in the July 1, 2012, edition of 40 CFR 63.2 *. Appropriate penalties may be assessed if the owner or operator of a secondary lead smelter fails to meet its burden of proving all of the requirements in the affirmative defense. The affirmative defense shall not be available for claims for injunctive relief. (b) To establish the affirmative defense in any action to enforce the standards set forth in this rule, the owner or operator of a secondary lead smelter must timely meet the notification requirements of subsection (c), and shall prove by a preponderance of evidence the following:(1) The excess emissions: (A) were caused by a sudden, infrequent, and unavoidable failure of air pollution control and monitoring equipment, process equipment, or a process to operate in a normal or usual manner; (B) could not have been prevented through careful planning, proper design or better operation and maintenance practices; (C) did not stem from any activity or event that could have been foreseen and avoided, or planned for; and (D) were not part of a recurring pattern indicative of inadequate design, operation, or maintenance. (2) Repairs were made as expeditiously as possible when the applicable emission limitations were being exceeded. Off-shift and overtime labor were used, to the extent practicable to make these repairs. (3) The frequency, amount, and duration of the excess emissions, including any bypass, were minimized to the maximum extent practicable during periods of the emissions. (4) If the excess emissions resulted from a bypass of control equipment or a process, then the bypass was unavoidable to prevent loss of life, personal injury, or severe property damage. (5) All possible steps were taken to minimize the impact of the excess emissions on ambient air quality, the environment, and human health. (6) All emissions monitoring and control systems were kept in operation if at all possible, consistent with safety and good air pollution control practices. (7) All of the actions in response to the excess emissions were documented by properly signed, contemporaneous operating logs. (8) At all times, the affected emission unit was operated in a manner consistent with good practices for minimizing emissions. (9) A written root cause analysis has been prepared, the purpose of which is to determine, correct, and eliminate the primary causes of the malfunction and the excess emissions resulting from the malfunction event at issue. The analysis shall also specify, using best monitoring methods and engineering judgment, the amount of excess emissions that were the result of the malfunction. (c) The owner or operator of the affected emission unit experiencing an exceedance of its emissions limit during a malfunction shall notify the department by telephone or facsimile transmission as soon as possible, but no later than two (2) business days after the initial occurrence of the malfunction, that it wishes to avail itself of an affirmative defense to civil penalties for that malfunction. The owner or operator of a secondary lead smelter seeking to assert an affirmative defense shall also submit a written report to the department within forty-five (45) days of the initial occurrence of the exceedance of the standard in this rule to demonstrate, with all necessary supporting documentation, that it has met the requirements set forth in subsection (b). The owner or operator of a secondary lead smelter may seek an extension of this deadline for up to thirty (30) additional days by submitting a written request to the department before the expiration of the forty-five (45) day period. Until a request for an extension has been approved by the department, the owner or operator of a secondary lead smelter is subject to the requirement to submit the report within forty-five (45) days of the initial occurrence of the exceedance. *This document is incorporated by reference. Copies may be obtained from the Government Printing Office, 732 North Capitol Street NW, Washington, D.C. 20401 or are available for review and copying at the Indiana Department of Environmental Management, Office of Air Quality, Indiana Government Center North, Tenth Floor, 100 North Senate Avenue, Indianapolis, Indiana 46204.
Air Pollution Control Division; 326 IAC 20-13-9; filed Jan 30, 2013, 12:34 p.m.: 20130227-IR-326110774FRA