N.M. Code R. § 20.2.7.111

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

Section 20.2.7.111 - AFFIRMATIVE DEFENSE FOR AN EXCESS EMISSION DURING MALFUNCTION

A. The owner or operator of a source subject to this part may claim an affirmative defense for an excess emission during malfunction for a civil penalty in an administrative or judicial enforcement action, except for an action to enforce a federal new source performance standard. There shall be no affirmative defense for an excess emission during malfunction for the owner or operator's liability or the department's claim for injunctive relief for the excess emission. The owner or operator claiming an affirmative defense for an excess emission during malfunction shall bear the burden of proof to demonstrate 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 excess emission was not part of a recurring pattern indicative of inadequate design, operation, or maintenance.

(9) The owner or operator complied with the notification requirements in Section 110 of 20.2.7 NMAC.

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

B. The department may request that the owner or operator of a source provide additional information beyond what is required in this section (20.2.7.111 NMAC). This additional information shall be reported within the time period specified by the department.

N.M. Code R. § 20.2.7.111

20.2.7.111 NMAC - N, 08/01/08