A.
Applicability.
This rule establishes affirmative defenses for certain
emissions in excess of an emission standard or limitation and applies to all
emission standards or limitations except for standards or limitations:
1. Promulgated pursuant to Sections 111 or
112 of the Act,
2. Promulgated
pursuant to Titles IV or VI of the Clean Air Act,
3. Contained in any Prevention of Significant
Deterioration (PSD) or New Source Review (NSR) permit issued by the U.S.
E.P.A.,
5. Included in a permit to meet
the requirements of
R18-2-406(A)(5).
B. Affirmative Defense for
Malfunctions.
Emissions in excess of an applicable emission limitation due
to malfunction shall constitute a violation. The owner or operator of a source
with emissions in excess of an applicable emission limitation due to
malfunction has an affirmative defense to a civil or administrative enforcement
proceeding based on that violation, other than a judicial action seeking
injunctive relief, if the owner or operator of the source has complied with the
reporting requirements of
R18-2-310.01 and has demonstrated
all of the following:
1. The excess
emissions resulted from a sudden and unavoidable breakdown of process equipment
or air pollution control equipment beyond the reasonable control of the
operator;
2. The air pollution
control equipment, process equipment, or processes were at all times maintained
and operated in a manner consistent with good practice for minimizing
emissions;
3. If repairs were
required, the repairs were made in an expeditious fashion when the applicable
emission limitations were being exceeded. Off-shift labor and overtime were
utilized where practicable to ensure that the repairs were made as
expeditiously as possible. If off-shift labor and overtime were not utilized,
the owner or operator satisfactorily demonstrated that the measures were
impracticable;
4. The amount and
duration of the excess emissions (including any bypass operation) were
minimized to the maximum extent practicable during periods of such
emissions;
5. All reasonable steps
were taken to minimize the impact of the excess emissions on ambient air
quality;
6. The excess emissions
were not part of a recurring pattern indicative of inadequate design,
operation, or maintenance;
7.
During the period of excess emissions there were no exceedances of the relevant
ambient air quality standards established in Article 2 of this Chapter that
could be attributed to the emitting source;
8. The excess emissions did not stem from any
activity or event that could have been foreseen and avoided, or planned, and
could not have been avoided by better operations and maintenance
practices;
9. All emissions
monitoring systems were kept in operation if at all practicable; and
10. The owner or operator's actions in
response to the excess emissions were documented by contemporaneous
records.
C. Affirmative
Defense for Startup and Shutdown.
1. Except
as provided in subsection (C)(2), and unless otherwise provided for in the
applicable requirement, emissions in excess of an applicable emission
limitation due to startup and shutdown shall constitute a violation. The owner
or operator of a source with emissions in excess of an applicable emission
limitation due to startup and shutdown has an affirmative defense to a civil or
administrative enforcement proceeding based on that violation, other than a
judicial action seeking injunctive relief, if the owner or operator of the
source has complied with the reporting requirements of
R18-2-310.01 and has demonstrated
all of the following:
a. The excess emissions
could not have been prevented through careful and prudent planning and
design;
b. If the excess emissions
were the result of a bypass of control equipment, the bypass was unavoidable to
prevent loss of life, personal injury, or severe damage to air pollution
control equipment, production equipment, or other property;
c. The source's air pollution control
equipment, process equipment, or processes were at all times maintained and
operated in a manner consistent with good practice for minimizing
emissions;
d. The amount and
duration of the excess emissions (including any bypass operation) were
minimized to the maximum extent practicable during periods of such
emissions;
e. All reasonable steps
were taken to minimize the impact of the excess emissions on ambient air
quality;
f. During the period of
excess emissions there were no exceedances of the relevant ambient air quality
standards established in Article 2 of this Chapter that could be attributed to
the emitting source;
g. All
emissions monitoring systems were kept in operation if at all practicable;
and
h. The owner or operator's
actions in response to the excess emissions were documented by contemporaneous
records.
2. If excess
emissions occur due to a malfunction during routine startup and shutdown, then
those instances shall be treated as other malfunctions subject to subsection
(B).
D. Affirmative
Defense for Malfunctions During Scheduled Maintenance.
If excess emissions occur due to a malfunction during
scheduled maintenance, then those instances will be treated as other
malfunctions subject to subsection (B).
E. Demonstration of Reasonable and
Practicable Measures.
For an affirmative defense under subsection (B) or (C), the
owner or operator of the source shall demonstrate, through submission of the
data and information required by this Section and
R18-2-310.01, that all reasonable
and practicable measures within the owner or operator's control were
implemented to prevent the occurrence of the excess emissions.
