TITLE 20 ENVIRONMENTAL
PROTECTION
CHAPTER 2 AIR
QUALITY (STATEWIDE)
PART 7 EXCESS
EMISSIONS
20.2.7.1 ISSUING
AGENCY. Environmental Improvement Board.
[20.2.7.1 NMAC - Rp,
20.2.7.1 NMAC, 08/01/08]
20.2.7.2 SCOPE. All
geographic areas within the jurisdiction of the environmental improvement board.
[20.2.7.2 NMAC - Rp,
20.2.7.2 NMAC, 08/01/08]
20.2.7.3 STATUTORY
AUTHORITY. Environmental Improvement Act, NMSA 1978,
section 74-1-8(A)(4) and (7), and Air Quality Control Act, NMSA 1978, sections
74-2-1 et seq., including specifically, section 74-2-5(A), (B) and (C).
[20.2.7.3 NMAC - Rp, 20.2.7.3 NMAC, 08/01/08]
20.2.7.4 DURATION. Permanent.
[20.2.7.4 NMAC - Rp,
20.2.7.4 NMAC, 08/01/08]
20.2.7.5 EFFECTIVE
DATE. 08/01/08, unless a later date is cited at the
end of a section.
[20.2.7.5 NMAC - Rp,
20.2.7.5 NMAC, 08/01/08]
[The latest effective date of any section in this part is 8/1/2008.]
20.2.7.6 OBJECTIVE.
A. Establish requirements
for a source whose operation results in an excess emission.
B. Establish
criteria for a source whose operation results in an excess emission to claim an
affirmative defense in an administrative or judicial enforcement action from a
civil penalty.
[20.2.7.6 NMAC - Rp,
20.2.7.6 NMAC, 08/01/08]
20.2.7.7 DEFINITIONS. In addition
to the terms defined in 20.2.2 NMAC (Definitions), as used in this part, the
following definitions apply.
A. "Air pollution
control equipment" means any apparatus, including acid plants,
afterburners, baghouses, cyclones, electrostatic precipitators, flares,
incinerators, and particulate or gaseous scrubbers, utilized to control the
emission of a regulated air contaminant, including a fugitive emission.
B. "Air quality
regulation or permit condition" means any regulation adopted by the board,
including a federal new source performance standard adopted by reference, or
any condition of an air quality permit issued by the department. National emission standards for hazardous air
pollutants and maximum achievable control technology standards are not included
in this definition.
C. "Bypass"
means the diversion of a regulated air contaminant around air pollution control
equipment or process equipment.
D. "Excess
emission" means the emission of an air contaminant, including a
fugitive emission, in excess of the quantity, rate, opacity or concentration
specified by an air quality regulation or permit condition.
E. "Malfunction"
means any sudden and unavoidable failure of air pollution control equipment or
process equipment beyond the control of the owner or operator, including
malfunction during startup or shutdown.
A failure that is caused entirely or in part by poor maintenance,
careless operation, or any other preventable equipment breakdown shall not be
considered a malfunction.
F. "Part"
means an air quality regulation under Title 20, Chapter 2 of the New Mexico
Administrative Code.
G. "Regular business day" means
any day on which state government offices are open for normal business. Saturdays, Sundays, and official federal and
state holidays are not regular business days.
H. "Shutdown"
means the cessation of operation of any air pollution control equipment or
process equipment.
I. "Startup"
means the setting into operation of any air pollution control equipment or
process equipment.
[20.2.7.7 NMAC - Rp,
20.2.7.7 NMAC, 08/01/08]
20.2.7.8 AMENDMENT
OR SUPERSESSION OF PRIOR REGULATIONS. This part supersedes New
Mexico Administrative Code ("NMAC") 20.2.7 -- Excess Emissions During
Malfunction, Startup, Shutdown, or Scheduled Maintenance last filed October 30,
1995.
[20.2.7.8 NMAC - Rp,
20.2.7.8 NMAC, 08/01/08]
20.2.7.9 DOCUMENTS. No
documents are cited in this part.
[20.2.7.9 NMAC - N, 08/01/08]
20.2.7.10 SEVERABILITY. If
any provision of this part, or the application of such provision to any person
or circumstance, is held invalid, the remainder of this part, or the
application of such provision to any person or circumstance other than those as
to which it is held invalid, shall not be affected thereby.
[20.2.7.10 NMAC - N,
08/01/08]
20.2.7.11 CONSTRUCTION. This
part shall be liberally construed to carry out its purpose.
[20.2.7.11 NMAC - N,
08/01/08]
20.2.7.12 SAVINGS
CLAUSE.. Repeal or supersession of a prior version of
this part shall not affect any administrative or judicial action initiated
under that prior version.
[20.2.7.12 NMAC - N,
08/01/08]
20.2.7.13 COMPLIANCE
WITH OTHER REGULATIONS. Compliance with this part does not relieve a
person from the responsibility to comply with any other applicable federal,
state, or local statute or regulation.
[20.2.7.13 NMAC - N,
08/01/08]
20.2.7.14 REQUIREMENTS
REGARDING ROUTINE OR PREDICTABLE EMISSIONS DURING STARTUP, SHUTDOWN, AND
MAINTENANCE.
A. The owner or operator of a source subject to a permit or to the
notification requirement under section 15 of this part, shall establish and
implement a plan to minimize emissions during routine or predictable startup,
shutdown, and scheduled maintenance through work practice standards and good
air pollution control practices. This
requirement shall not apply to any affected facility defined in and subject to
an emissions standard and an equivalent plan under 40 CFR Part 60 (NSPS), 40
CFR Part 63 (MACT), or an equivalent plan under 20.2.72 NMAC - Construction
Permits, 20.2.70 NMAC - Operating Permits, 20.2.74 NMAC - Permits - Prevention
of Significant Deterioration (PSD), or 20.2.79 NMAC - Permits - Nonattainment
Areas.
B. The owner or
operator shall maintain the plan at the location authorized by the permit, at
the facility, or at the nearest occupied facility, and provide the plan to the
department upon written request.
C. This requirement shall become effective 180 days after the effective
date of this part.
[20.2.7.14 NMAC - Rp,
20.2.7.14 NMAC, 08/01/08]
20.2.7.15 TEMPORARY
PROVISIONS FOR ROUTINE OR PREDICTABLE EMISSIONS DURING STARTUP, SHUTDOWN, AND
SCHEDULED MAINTENANCE.
A. If
the inclusion of emissions during routine or predictable startup, shutdown, or
scheduled maintenance in addition to the potential emission rate or potential
to emit of a source could exceed an applicable emissions limitation, or would
cause the source to exceed an applicability threshold in 20.2.72 NMAC -
Construction Permits, 20.2.70 NMAC - Operating Permits, 20.2.74 NMAC - Permits
- Prevention of Significant Deterioration (PSD), or 20.2.79 NMAC - Permits -
Nonattainment Areas, the owner or operator shall notify the department in
writing no later than 180 days after the effective date of this part. The notice shall include a preliminary
estimate of emissions by pollutant to the extent practicable and identify the
nature of permitting action likely to be required.
B. The owner or
operator shall submit the necessary permit application no later than 120 days
after receiving a request from the department.
C. If a timely notice
is submitted under Subsection A of 20.2.7.15 NMAC for any excess emission
during routine or predictable startup, shutdown, or scheduled maintenance, the
owner or operator shall comply only with Paragraph (2) of Subsection A of 20.2.7.110
NMAC - Final Report, until the permit is issued or denied.
D. At the request
of the department, the owner or operator of a source that does not submit a
notification under Subsection A of 20.2.7.15 NMAC shall submit the basis for
its determination and supporting analysis.
[20.2.7.15 NMAC - N, 08/01/08]
20.2.7.16 to 20.2.7.107 [RESERVED]
20.2.7.108 APPLICABILITY.
A. Any
source:
(1) whose operation
results in an emission of an air contaminant, including a fugitive emission, in
excess of the quantity, rate, opacity or concentration specified by an air
quality regulation or permit condition; or
(2) subject to the
requirements of 20.2.73 NMAC - Notices
of Intent and Emissions Inventory Requirements, 20.2.72 NMAC - Construction
Permits, 20.2.70 NMAC - Operating Permits, 20.2.74 - Permits - Prevention of
Significant Deterioration (PSD), or 20.2.79 - Permits - Nonattainment Areas.
B. Deviations
under 20.2.70 NMAC - Operating Permits that do not result in excess emissions
are not subject to the provisions of 20.2.7 NMAC.
C. This
part does not create a separate cause of action for failure to obtain a permit
under 20.2.72 NMAC - Construction Permits, 20.2.70 NMAC - Operating Permits,
20.2.74 - Permits - Prevention of Significant Deterioration (PSD), or 20.2.79 -
Permits - Nonattainment Areas.
[20.2.7.108 NMAC - N,
08/01/08]
20.2.7.109 OPERATION
RESULTING IN AN EXCESS EMISSIONS. The emission of an air
contaminant in excess of the quantity, rate, opacity, or concentration
specified in an air quality regulation or permit condition that results in an
excess emission is a violation of the air quality regulation or permit
condition and may be subject to an enforcement action. The owner or operator of a source having an
excess emission shall, to the extent practicable, operate the source, including
associated air pollution control equipment, in a manner consistent with good
air pollution control practices for minimizing emissions.
[20.2.7.109 NMAC - Rp,
20.2.7.109 NMAC, 08/01/08]
20.2.7.110 NOTIFICATION.
A. The owner or
operator of a source having an excess emission shall report the following
information to the department on forms provided by the department. The
department may authorize the submittal of such reports in electronic format.
(1) Initial report: the owner or operator shall file an initial
report, no later than the end of the next regular business day after the time
of discovery of an excess emission that includes all available information for
each item in Subsection B of 20.2.7.110 NMAC.
(2) Final report: the owner or operator shall file a final
report that contains specific and detailed information for each item in
Subsection B of 20.2.7.110 NMAC, no later than ten (10) days after the end of
the excess emission.
B. The
report shall include the following information.
(1) The name of the source.
(2) The name of the owner and operator of the
source.
(3) The name and title of the person preparing
the report.
(4) Identifying information such as permit and
database numbers.
(5) The specific date(s) and time(s) the
excess emission occurred.
(6)
Identification of the equipment
involved and the emission point(s) (including bypass) from which the excess
emission occurred.
(7) The air quality regulation or permit
condition that was exceeded.
(8) Identification of the air contaminant(s)
and the magnitude of the excess emission expressed in the units of the air
quality regulation or permit condition.
(9) The method for determining the magnitude
and duration of the excess emission.
(10) The cause and nature of the excess
emission.
(11) The steps taken to limit the duration and
magnitude of the excess emission.
(12) The corrective action(s) taken to
eliminate the cause of the excess emission. If one or more corrective actions
are required, the report shall include a schedule for implementation of those
actions, with associated progress reports.
If no corrective actions are required, the report shall include a detailed
explanation for that conclusion.
(13) The corrective action(s) taken to prevent
a recurrence of the excess emission.
(14) Whether the owner or operator attributes
the excess emission to malfunction, startup or shutdown.
(15) Whether the owner or operator will claim
an affirmative defense under Sections 111, 112, or 113 of 20.2.7 NMAC. If claiming an affirmative defense, an
analysis with and the supporting evidence for each criterion shall be submitted
no later than thirty (30) days after submittal of the final report required by
this subsection (Subsection B of 20.2.7.110 NMAC). Upon the department's receipt of a written
request by the owner or operator no later than thirty (30) days after submittal
of the final report, the department may grant an extension to complete the
analysis not to exceed thirty (30) additional days.
(16) The contents of the final report shall
contain a signed certification of truth, accuracy, and completeness. This certification shall be signed by the person
who is reporting the excess emission.
C. The
department may request that the owner or operator of a source provide
additional information. This information
shall be reported within a time period specified by the department.
D. If
the period of an excess emission extends beyond the deadline specified in
Paragraph (2) of Subsection A of 20.2.7.110 NMAC, the owner or operator shall
notify the department in writing within seventy-two (72) hours of the date and
time when the excess emission ceased.
This notification shall include all items required in Subsection B of
20.2.7.110 NMAC.
[20.2.7.110 NMAC - Rp,
20.2.7.110 NMAC, 08/01/08]
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.
[20.2.7.111 NMAC - N,
08/01/08]
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.
[20.2.7.112 NMAC - Rp,
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20.2.7.113 AFFIRMATIVE
DEFENSE FOR AN EMERGENCY.
A. An "emergency" means any situation arising from
sudden and reasonably unforeseeable events beyond the control of the permittee,
including acts of God, which situation requires immediate corrective action to
restore normal operation, and that causes the source to exceed a
technology-based emission limitation due to unavoidable increases in emissions
attributable to the emergency. An
emergency shall not include noncompliance to the extent caused by improperly
designed equipment, lack of preventive maintenance, or careless or improper
operation.
B. An emergency constitutes an affirmative defense to an
action brought for noncompliance with the technology-based emission limitation
if the owner or operator of the source demonstrates through properly signed,
contemporaneous operating logs, or other relevant evidence that:
(1)
an emergency occurred and that the owner or operator can identify the
cause(s) of the emergency;
(2)
the source was at the time being properly operated;
(3) during
the period of the emergency the owner or operator took all reasonable steps to
minimize levels of emissions that exceeded the technology-based emission
limitation; and
(4)
the owner or operator fulfilled the notification requirements under
Subsection A of 20.2.7.110 NMAC, including a description of the emergency, any
steps taken to mitigate emissions, and corrective actions taken.
C. In any enforcement proceeding, the owner or operator
seeking to establish the occurrence of an emergency has the burden of proof.
D. The department
may request that the owner or operator of a source provide additional
information beyond what is required in this section (20.2.7.113 NMAC). This additional information shall be reported
within the time period specified by the department.
[20.2.7.113 NMAC - N,
08/01/08]
20.2.7.114 ROOT
CAUSE AND CORRECTIVE ACTION ANALYSIS.
A. The
owner or operator of a source having an excess emission, upon written request
of the department, shall prepare an analysis that uses appropriate analytical
tools and contains the following information.
(1) an analysis describing the root cause and
all contributing causes of the excess emission;
(2) an analysis of the corrective actions implemented
or available to reduce the likelihood of a recurrence of the excess emission
resulting from the causes identified under Paragraph (1) of Subsection A of 20.2.7.114
NMAC, including, as applicable:
(a) identification of implemented or available
corrective action alternatives, such as changes in design, operation and
maintenance;
(b) the estimated cost associated with each
corrective action alternative;
(c) the probable effectiveness of each
corrective action alternative;
(d)
if no corrective action alternatives are
available, a clear explanation providing an adequate justification for that
conclusion; and
(e)
if one or more corrective actions are
identified, a schedule for implementation and progress reports.
B. The
department shall make the request no later than ninety (90) days after receipt
of the final report under Subsection A of 20.2.7.110 NMAC.
C. The department
may request the analysis specified in Subsection A of 20.2.7.114 NMAC after
considering relevant factors. Examples
of such relevant factors may include but are not limited to the significance of
the excess emission, the nature or pattern of excess emissions, or the history
of the source, as well as other factors determined to be relevant by the
department.
D. The completed
analysis shall be submitted to the department no later than sixty (60) days
after the request for submittal pursuant to Subsection A of 20.2.7.114 NMAC. The department may grant an extension to
submit the analysis for good cause shown.
E. The owner or
operator of a source complying with this section may assert a claim for
confidential information protection pursuant to 20.2.1.115 NMAC.
[20.2.7.114 NMAC - N,
08/01/08]
20.2.7.115 REVIEW
OF THE DEPARTMENT'S DETERMINATIONS UNDER SECTIONS 111, 112, AND 113. The
department may issue a determination regarding an owner or operator's assertion
of the affirmative defense under Section 111, 112, or 113 of 20.2.7 NMAC on the
basis of any relevant information, including but not limited to information
submitted pursuant to this part or obtained through an inspection. Any such determination is not a final action
and is not reviewable, shall not be a prerequisite to the commencement of an
administrative or judicial enforcement action, does not constitute a waiver of
liability pursuant to Section 116 of 20.2.7 NMAC, and shall not preclude an
enforcement action by the federal government or a citizen pursuant to the
federal Clean Air Act. A source may not
assert an affirmative defense under Section 111, 112, or 113 of 20.2.7 NMAC in
an administrative or judicial enforcement action unless it asserted such
defense pursuant to Subsection B of 20.2.7.110 NMAC.
[20.2.7.115 NMAC - Rp, N, 08/01/08]
20.2.7.116 FUTURE ENFORCEMENT ACTION. The
department may commence an administrative or judicial enforcement action
against the owner or operator of a source for an excess emission for which it
has made a determination pursuant to Section 115 of 20.2.7 NMAC if the
department determines that the excess emission is related to a pattern of
excess emission events, poor maintenance, careless or marginal operation, or
other appropriate reason.
[20.2.7.116 NMAC - Rp,
20.2.7.116 NMAC, 08/01/08]
HISTORY OF 20.2.7 NMAC:
Pre- NMAC History: The
material in this part was derived from that previously filed with the
commission of public records - state records center and archives.
HSSD 70-1, Ambient
Air Quality Standards And Air Quality Control Regulations, 01/27/70.
ACQR 801, Air
Quality Control Regulation 801 - Excess Emissions During Malfunction, Startup,
Shutdown, or Scheduled Maintenance, 04/29/81.
History of Repealed Material: 20.2.7
NMAC, Excess Emissions during Malfunction, Startup, Shutdown, or Scheduled
Maintenance (filed 10/16/02) repealed 08/01/08/
Other History:
ACQR 801, Air
Quality Control Regulation 801 - Excess Emissions During Malfunction, Startup,
Shutdown, or Scheduled Maintenance, filed 04/29/81was renumbered into first
version of the New Mexico Administrative Code as 20 NMAC 2.7, Air Quality (Statewide) - Excess Emissions During
Malfunction, Startup, Shutdown, or Scheduled Maintenance, filed 10/30/95.
20 NMAC 2.7, Air
Quality (Statewide) - Excess Emissions
During Malfunction, Startup, Shutdown, or Scheduled Maintenance, filed 10/30/95
was renumbered, reformatted and replaced by 20.2.7 NMAC, Excess Emissions
During Malfunction, Startup, Shutdown, or Scheduled Maintenance, effective
10/31/02.
Excess Emissions
during Malfunction, Startup, Shutdown, or Scheduled Maintenance (filed
10/16/02) was replaced by 20.2.7 NMAC, Excess Emissions, effective 08/01/08.