Affirmative defense for exceedance of emission limit during malfunction.
In response to an action to enforce the standards set forth in paragraph § 63.1343(b) you may assert an affirmative defense to a claim for civil penalties for exceedances of such standards that are caused by malfunction, as defined at 40 CFR 63.2. Appropriate penalties may be assessed, however, if the respondent 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.
(a) To establish the affirmative defense in any action to enforce such a limit, the owners or operators of facilities must timely meet the notification requirements in paragraph (b) of this section, and must prove by a preponderance of evidence that:
(1) The excess emissions:
(i) Were caused by a sudden, short, 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 limitations 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, severe 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; and
(7) Your actions in response to the excess emissions were documented by properly signed, contemporaneous operating logs; and
(8) At all times, the facility was operated in a manner consistent with good practices for minimizing emissions; and
(9) The owner or operator has prepared a written root cause analysis 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) Notification. The owner or operator of the facility 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 two 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 30 days of the initial occurrence of the exceedance of the standard in § 63.1343(b) to demonstrate, with all necessary supporting documentation, that it has met the requirements set forth in paragraph (a) of this section.
[75 FR 55053, Sept. 9, 2010]
Title 40 published on 2012-07-01
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