40 CFR 60.4861 - How do I establish an affirmative defense for exceedance of an emission limit or standard during malfunction?

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§ 60.4861 How do I establish an affirmative defense for exceedance of an emission limit or standard during malfunction?
In response to an action to enforce the numerical emission standards set forth in paragraph § 60.4845, you may assert an affirmative defense to a claim for civil penalties for exceedances of emission limits that are caused by malfunction, as defined in § 60.2. Appropriate penalties may be assessed, however, if you fail to meet your burden of proving all of the requirements in the affirmative defense. The affirmative defense shall not be available for claims for injunctive relief.
(a) To establish the affirmative defense in any action to enforce such a limit, you must timely meet the notification requirements in paragraph (b) of this section, and must prove by a preponderance of evidence that the conditions in paragraphs (a)(1) through (a)(9) of this section are met.
(1) The excess emissions meet:
(i) 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, and
(ii) Could not have been prevented through careful planning, proper design or better operation and maintenance practices, and
(iii) Did not stem from any activity or event that could have been foreseen and avoided, or planned for, and
(iv) Were not part of a recurring pattern indicative of inadequate design, operation, or maintenance, and (2) Repairs were made as expeditiously as possible when the applicable emission limits were being exceeded. Off-shift and overtime labor were used, to the extent practicable to make these repairs, and
(3) The frequency, amount and duration of the excess emissions (including any bypass) were minimized to the maximum extent practicable during periods of such emissions, and
(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, and
(5) All possible steps were taken to minimize the impact of the excess emissions on ambient air quality, the environment and human health, and
(6) All emissions monitoring and control systems were kept in operation if at all possible consistent with safety and good air pollution control practices, and
(7) All of the actions in response to the excess emissions were documented by properly signed, contemporaneous operating logs, and
(8) At all times, the affected facility was operated in a manner consistent with good practices for minimizing emissions, and
(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.
(b) The owner or operator of the SSI unit experiencing an exceedance of its emission limit(s) during a malfunction, shall notify the Administrator by telephone or facsimile (fax) transmission as soon as possible, but no later than 2 business days after the initial occurrence of the malfunction, if it wishes to avail itself of an affirmative defense to civil penalties for that malfunction. The owner or operator seeking to assert an affirmative defense shall also submit a written report to the Administrator within 45 days of the initial occurrence of the exceedance of the standard in § 60.4845 to demonstrate, with all necessary supporting documentation, that it has met the requirements set forth in paragraph (a) of this section. The owner or operator may seek an extension of this deadline for up to 30 additional days by submitting a written request to the Administrator before the expiration of the 45 day period. Until a request for an extension has been approved by the Administrator, the owner or operator is subject to the requirement to submit such report within 45 days of the initial occurrence of the exceedance.

Title 40 published on 2014-07-01

The following are only the Rules published in the Federal Register after the published date of Title 40.

For a complete list of all Rules, Proposed Rules, and Notices view the Rulemaking tab.

  • 2014-08-15; vol. 79 # 158 - Friday, August 15, 2014
    1. 79 FR 48072 - NESHAP for Reciprocating Internal Combustion Engines; NSPS for Stationary Internal Combustion Engines
      GPO FDSys XML | Text
      ENVIRONMENTAL PROTECTION AGENCY
      Notice of final decision on reconsideration.
      Effective August 15, 2014. Any petitions for review of the letters announcing the EPA's decision not to propose changes to the regulations in response to the public comments received on the three issues under reconsideration described in this Notice must be filed in the U.S. Court of Appeals for the District of Columbia Circuit by October 14, 2014.
      40 CFR Parts 60 and 63

This is a list of United States Code sections, Statutes at Large, Public Laws, and Presidential Documents, which provide rulemaking authority for this CFR Part.

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It is not guaranteed to be accurate or up-to-date, though we do refresh the database weekly. More limitations on accuracy are described at the GPO site.


United States Code
U.S. Code: Title 42 - THE PUBLIC HEALTH AND WELFARE

§ 7401 - Congressional findings and declaration of purpose

§ 7402 - Cooperative activities

§ 7403 - Research, investigation, training, and other activities

§ 7404 - Research relating to fuels and vehicles

§ 7405 - Grants for support of air pollution planning and control programs

§ 7406 - Interstate air quality agencies; program cost limitations

§ 7407 - Air quality control regions

§ 7408 - Air quality criteria and control techniques

§ 7409 - National primary and secondary ambient air quality standards

§ 7410 - State implementation plans for national primary and secondary ambient air quality standards

§ 7411 - Standards of performance for new stationary sources

§ 7412 - Hazardous air pollutants

§ 7413 - Federal enforcement

§ 7414 - Recordkeeping, inspections, monitoring, and entry

§ 7415 - International air pollution

§ 7416 - Retention of State authority

§ 7417 - Advisory committees

§ 7418 - Control of pollution from Federal facilities

§ 7419 - Primary nonferrous smelter orders

§ 7420 - Noncompliance penalty

§ 7421 - Consultation

§ 7422 - Listing of certain unregulated pollutants

§ 7423 - Stack heights

§ 7424 - Assurance of adequacy of State plans

§ 7425 - Measures to prevent economic disruption or unemployment

§ 7426 - Interstate pollution abatement

§ 7427 - Public notification

§ 7428 - State boards

§ 7429 - Solid waste combustion

§ 7430 - Emission factors

§ 7431 - Land use authority

§ 7450 to 7459 - Repealed.

§ 7470 - Congressional declaration of purpose

§ 7471 - Plan requirements

§ 7472 - Initial classifications

§ 7473 - Increments and ceilings

§ 7474 - Area redesignation

§ 7475 - Preconstruction requirements

§ 7476 - Other pollutants

§ 7477 - Enforcement

§ 7478 - Period before plan approval

§ 7479 - Definitions

§ 7491 - Visibility protection for Federal class I areas

§ 7492 - Visibility

§ 7501 - Definitions

§ 7502 - Nonattainment plan provisions in general

§ 7503 - Permit requirements

§ 7504 - Planning procedures

§ 7505 - Environmental Protection Agency grants

§ 7505a - Maintenance plans

§ 7506 - Limitations on certain Federal assistance

§ 7506a - Interstate transport commissions

§ 7507 - New motor vehicle emission standards in nonattainment areas

§ 7508 - Guidance documents

§ 7509 - Sanctions and consequences of failure to attain

§ 7509a - International border areas

§ 7511 - Classifications and attainment dates

§ 7511a - Plan submissions and requirements

§ 7511b - Federal ozone measures

§ 7511c - Control of interstate ozone air pollution

§ 7511d - Enforcement for Severe and Extreme ozone nonattainment areas for failure to attain

§ 7511e - Transitional areas

§ 7511f - NO

§ 7512 - Classification and attainment dates

§ 7512a - Plan submissions and requirements

§ 7513 - Classifications and attainment dates

§ 7513a - Plan provisions and schedules for plan submissions

§ 7513b - Issuance of RACM and BACM guidance

§ 7514 - Plan submission deadlines

§ 7514a - Attainment dates

§ 7515 - General savings clause

§ 7521 - Emission standards for new motor vehicles or new motor vehicle engines

§ 7522 - Prohibited acts

§ 7523 - Actions to restrain violations

§ 7524 - Civil penalties

§ 7525 - Motor vehicle and motor vehicle engine compliance testing and certification

§ 7541 - Compliance by vehicles and engines in actual use

§ 7542 - Information collection

§ 7543 - State standards

§ 7544 - State grants

§ 7545 - Regulation of fuels

§ 7546 - Renewable fuel

§ 7547 - Nonroad engines and vehicles

§ 7548 - Study of particulate emissions from motor vehicles

§ 7549 - High altitude performance adjustments

§ 7550 - Definitions

§ 7551 - Omitted

§ 7552 - Motor vehicle compliance program fees

§ 7553 - Prohibition on production of engines requiring leaded gasoline

§ 7554 - Urban bus standards

§ 7571 - Establishment of standards

§ 7572 - Enforcement of standards

§ 7573 - State standards and controls

§ 7574 - Definitions

§ 7581 - Definitions

§ 7582 - Requirements applicable to clean-fuel vehicles

§ 7583 - Standards for light-duty clean-fuel vehicles

§ 7584 - Administration and enforcement as per California standards

§ 7585 - Standards for heavy-duty clean-fuel vehicles (GVWR above 8,500 up to 26,000 lbs.)

§ 7586 - Centrally fueled fleets

§ 7587 - Vehicle conversions

§ 7588 - Federal agency fleets

§ 7589 - California pilot test program

§ 7590 - General provisions

§ 7601 - Administration

Title 40 published on 2014-07-01

The following are ALL rules, proposed rules, and notices (chronologically) published in the Federal Register relating to 40 CFR 60 after this date.

  • 2014-09-16; vol. 79 # 179 - Tuesday, September 16, 2014
    1. 79 FR 55413 - Standards of Performance for Grain Elevators
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      ENVIRONMENTAL PROTECTION AGENCY
      Proposed rule; extension of public comment period.
      Comments. The public comment period for the proposed rule published July 9, 2014 (79 FR 39241), is being extended by 30 days to November 6, 2014, in order to provide the public additional time to submit comments and supporting information.
      40 CFR Part 60