N.M. Code R. § 20.11.49.16

Current through Register Vol. 35, No. 11, June 11, 2024

Section 20.11.49.16 - EXCESS EMISSIONS DURING STARTUP, SHUTDOWN, MALFUNCTION, OR EMERGENCY

All periods of excess emissions regardless of cause are violations of the state Air Quality Control Act and rules promulgated thereunder, and any applicable permit. The owner or operator of a source who contends that an excess emission occurred during startup, shutdown, malfunction, or emergency may submit to the department a supplemental report addressing the criteria described in Subsections A, B, or C of 20.11.49.16 NMAC. To be considered by the department, the appropriate supplemental report described in Subsections A, B, or C of 20.1.49.16 NMAC below must be submitted to the department no later than 30 days after the final excess emissions report submitted pursuant to 20.11.49.15 NMAC. The department may grant written extensions to this deadline for good cause shown. An owner or operator of a source who contends that enforcement action for an excess emission is not warranted must provide information in a supplemental report as described in Subsections A, B, or C of 20.11.49.16 NMAC. If no supplemental report is timely received, the department will not consider the criteria described in Subsections A, B, and C of 20.11.49.16 NMAC. The department may require the owner or operator of a source to provide further information in addition to that already contained in the supplemental report or otherwise specified in 20.11.49.16 NMAC. The information in the supplemental report may be considered by the department at its sole discretion and is not intended to be enforceable in a legal proceeding by any party or to limit the enforcement authority of any party. 20.11.49.16 NMAC shall not be construed to preclude EPA or federal court jurisdiction under Section 113 of the federal act to assess civil penalties or other forms of relief for periods of excess emissions, to prevent EPA or the courts from considering the statutory factors for the assessment of civil penalties under Section 113 of the federal act, or to interfere with the rights of litigants to pursue enforcement consistent with their rights under the citizen suit provision of Section 304 of the federal act.

A.Supplemental report for an excess emission during malfunction: The owner or operator of a source subject to 20.11.49 NMAC may file a supplemental report for an excess emission during malfunction addressing the following criteria:

(1) the excess emission was caused by a malfunction;

(2) the excess emission:

(a) did not stem from any activity or event that could have been foreseen and avoided, or planned for; and

(b) could not have been avoided by better operation and maintenance practices;

(3) to the maximum extent practicable the air pollution control equipment or processes were maintained and operated in a manner consistent with good practice for minimizing emissions;

(4) repairs were made in an expeditious fashion when the operator knew or should have known that applicable emission limitations were being exceeded; off-shift labor and overtime must have been utilized, to the extent practicable, to ensure that such repairs were made as expeditiously as practicable;

(5) the amount and duration of the excess emission (including any bypass) were minimized to the maximum extent practicable during periods of such emissions;

(6) all possible steps were taken to minimize the impact of the excess emission on ambient air quality;

(7) all emission monitoring systems were kept in operation if at all possible;

(8) the owner or operator's actions in response to the excess emission were documented by properly signed, contemporaneous operating logs, or other relevant evidence;

(9) the excess emissions were not part of a recurring pattern indicative of inadequate design, operation, or maintenance; and

(10) the owner or operator complied with all notification requirements in 20.11.49.15 NMAC.

B. Supplemental report for an excess emission during startup or shutdown: The owner or operator of a source subject to 20.11.49 NMAC may file a supplemental report for an excess emission during startup or shutdown, addressing the following criteria:

(1) the excess emission occurred during a startup or shutdown;

(2) the periods of excess emissions that occurred during startup or shutdown were short and infrequent and could not have been prevented through careful planning and design;

(3) the excess emissions were not part of a recurring pattern indicative of inadequate design, operation, or maintenance;

(4) if the excess emissions were caused by a bypass (an intentional diversion of control equipment), then the bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;

(5) at all times, the source was operated in a manner consistent with good practices for minimizing emissions;

(6) the frequency and duration of operation in startup or shutdown mode was minimized to the maximum extent practicable;

(7) all possible steps were taken to minimize the impact of the excess emission on ambient air quality;

(8) all emissions monitoring systems were kept in operation if at all possible;

(9) the owner or operator's actions during the period of excess emissions were documented by properly signed, contemporaneous operating logs, or other relevant evidence; and

(10) the owner or operator complied with all notification requirements in 20.11.49.15 NMAC.

C.Supplemental report for an emergency: The owner or operator of a source subject to 20.11.49 NMAC may file a supplemental report for an excess emission during an emergency addressing the following criteria:

(1) an emergency occurred;

(2) the excess emission occurred during the emergency;

(3) the owner or operator has identified the cause of the emergency;

(4) the excess emission resulted from the emergency;

(5) the excess emission and resulting emergency could not have been prevented through careful planning and design;

(6) the excess emission and resulting emergency were not part of a recurring pattern indicative of inadequate design, operation, or maintenance;

(7) at the time the excess emission and emergency occurred, the source was being properly operated;

(8) during the period of the excess emission, the owner or operator took all reasonable steps to minimize levels of emissions that exceeded the applicable standard, regulation, or permit condition; and

(9) the owner or operator complied with all notification requirements in 20.11.49.15 NMAC, including a description of the emergency, any steps to mitigate emissions, and corrective actions taken.

D.Department's determination of adequacy of supplemental report: Nothing in 20.11.49 NMAC creates an affirmative defense or entitles a source to relief from penalties for any excess emission including, but not limited to, any exceedance of a limit which already takes into account startup and shutdown emissions, any NAAQS or PSD increment, or any federally promulgated limit or any requirement derived from such a limit, including 40 CFR Parts 60, 61, and 63. However, the department in its sole discretion may consider any relevant information, including information submitted in a supplemental report, in connection with a demand for corrective action or injunctive relief, or the assessment or negotiation of a penalty in an enforcement action. The department's determination of how much weight to give information in a supplemental report is based on its sole discretion.

N.M. Code R. § 20.11.49.16

20.11.49.16 NMAC - N, 10/13/09, Amended by New Mexico Register, Volume XXVII, Issue 18, September 30, 2016, eff. 10/15/2016