N.M. Admin. Code § 20.2.7.112

Current through Register Vol. 35, No. 20, October 22, 2024

Section 20.2.7.112 - AFFIRMATIVE DEFENSE FOR AN EXCESS EMISSION DURING STARTUP OR SHUTDOWN

A. The owner or operator of a source subject to this part may claim an affirmative defense for an excess emission during startup or shutdown 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 startup or shutdown 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 startup or shutdown shall bear the burden of proof to demonstrate the following criteria.

(1) The excess emission occurred during a startup or shutdown.

(2) The duration of the excess emission that occurred during startup and shutdown was short and could not have been prevented through careful planning and design.

(3) The excess emission was not part of a recurring pattern indicative of inadequate design, operation, or maintenance.

(4) If the excess emission was 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 complied with the notification requirements in Section 110 of 20.2.7 NMAC.

(10) The owner or operator's actions during the period of 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 (20.2.7.112 NMAC). This additional information shall be reported within the time period specified by the department.

C. An excess emission due to malfunction during a period of startup or shutdown which is authorized by permit shall be treated as a malfunction under 20.2.7.111 NMAC.

N.M. Admin. Code § 20.2.7.112

20.2.7.112 NMAC - Rp, 20.2.7.112 NMAC, 08/01/08