### NewMexico: Albuquerque-Bernalillo County

Codified at 40 CFR 52.1620(c)

Second Table, See Part49

### TITLE20 CHAPTERll PART49 ENVIRONMENTAL PROTECTION ALBUQUERQUE- BERNALILLO COUNTY AIR QUALITY CONTROL BOARD EXCESS EMISSIONS

20.l1.49.1 ISSUING AGENCY: Albuquerque- Bernalillo County Air Quality Control Board, c/o Environmental Health Department. P.O. Box 1293, Albuquerque, \'lew Mexico 87103. Telephone: (505) 768- 2601. [20.11.49.1 NMAC- N, 10/13/09]

20.l1.49.2 SCOPE: A. 20.11.49 NMAC is applicable to every stationary source within Bernalillo county. B. Exempt: 20.11.49 NMAC does not apply to sources within Bernalillo county that are located on indian lands over which the Albuquerque-Bernalillo county air quality control board lacksjurisdiction. [20.11.49.2 NMAC- N, 10/13/09]

20.l1.49.3 STATUTORYAUTHORITY: 20.11.49 NMAC is adopted pursuantto the authority provided in the NewMexico AirQuality Control Act, NMSA 1978 Sections 74-2-4, 74-2-5; the Joint Air Quality Control Board Ordinance, Bernalillo County Ordinance No. 94-5, Sections 4 and 5; and the Joint Air Quality Control Board Ordinance, Revised Ordinances ofAlbuquerque 1994, Sections 9-5-1-4 and 9-5-1-5. [20.11.49.3 NMAC- N, 10/13/09]

20.l1.49.4 DURATION: Permanent. [20.11.49.4 NMAC- N, 10/13/09]

20.l1.49.5 EFFECTIVE DATE: I0/13/09, unless a later date is cited at the end ofa section. [20.11.49.5 NMAC- N, 10113/09]

20.l1.49.6 OBJECTIVE: To implement requirements for the reporting ofexcess emissions and establish affirmative defense provisions for facility owners and operators for excess emissions. [20.11.49.6 NMAC- N, 10/13/09]

20.l1.49.7 DEFINITIONS: In addition to the definitions in 20.11.49 NMAC, the defmitions in 20.11.1 NMAC apply unless there is a conflict between definitions, in which case the definition in 20.11.49 NMAC shall govern. 

### A. "Air pollution control equipment" means any device, equipment, process or combination 

### thereof, the operation ofwhich may limit, capture, reduce, confme, or otherwise control regulated air pollutants or convert for the purposes ofcontrol any regulated air pollutantto another form, another chemical or another physical state (e.g. sulfur recovery units, acid plants, baghouses, precipitators, scrubbers, cyclones, water sprays, enclosures, catalytic converters, and steam or water injection). B. "Air quality regulation or permit condition" means any regulation adopted by the board, including afederal new source perfonnance standard or national emission standard for hazardous air pollutants incorporated by reference, or any condition ofan air quality permit issued by the department. C. "Bypass" means the diversion ofaregulated air contaminant around air pollution control equipment or process equipment. D. "Building, structure, facility, or installation" means all ofthe pollutant:-emitting activities which belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control ofthe same person (or persons under common control) except the activities ofany vessel. Pollutant-emitting activities shall be considered as part ofthe same industrial grouping ifthey belong to the same major group (i.e.,which have the same two-digit code) as described in the standard industrialclassification manual, 1972, 

### as amended by the 1977 supplement (U.S. government printing office stock numbers 4101-0065 and 003-005-00176-0, respectively). E. "Emergency" means any situation arising from sudden and reasonably unforeseeable events beyond the control ofthe pennittee, including acts ofGod or nature, which situation requires immediate corrective action to restore nonnal operation, and that causes the source to exceed atechnology-based emission limitation due
to 

### unavoidable increases in emissions attributable to the emergency. An emergency shall not include

20.11.49 NMAC I

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# I 

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I noncompliance to the extent caused by improperly designed equipment, lack ofpreventive maintenance, or careless

or improper operation. F. "Excess emission" means the emission ofan air contaminant, including a fugitive emission, in

excess ofthe quantity, rate, opacity or concentration specified by an air quality regulation orpermit condition. 

### G. "Malfunction"means**~my** sudden and unavoidable failure ofair pollution control equipment or process equipment beyond the control ofthe owner oroperator, including malfunction during startup or shutdown. A failure that is caused entirely orin partby poor maintenance; careless operation, or any otherpreventable equipment breakdown shall not be considered 

### a malfunction. H. [Reserved] 

### I. "Regularbusiness day" means any day on which city ofAlbuquerque government offices are open for normal business. Saturdays, Sundays, and official federal and city ofAlbuquerque holidays are not regular business days. 

### J. "Shutdown" means the cessation ofoperation ofany air pollution control equipment orprocess equipment. K. "Startup" means setting into operation any air pollution control equipment orprocess equipment. L. "Stationarysource" or "source" means any building, structure,facility, orinstallation which emits ormay emit a regulated airpollutant. [20.11.49.7 NMAC- N, 10/13/09]

20.11.49.8 VARIANCES: [Reserved] [20.11.49.8 NMAC- N, 10/13/09]

20.11.49.9 SAVINGS CLAUSE: Any amendment to 20.11.49 NMAC which is filed with the state records
center shall not affect actions pending for violation ofa city or county ordinance, or 20.11.49 NMAC. Prosecution for a violation under prior regulation wording shall be governed and prosecuted under the statute, ordinance, part, or regulation section in effect atthe timethe violation was committed. [20.11.49.9 NMAC- N, 10/13/09]

20.11.49.10 SEVERABILITY: Ifforany reason any section, subsection, sentence, phrase, clause, wording or application of20.11.49 NMAC is heldto be unconstitutional orotherwise invalid by any courtorthe United States environmental protection agency, the decision shall not affect the validity or application ofremaining portions of 20.11.49 NMAC. [20.11.49.10NMAC -N, 10113/09]

20.11.49.11 DOCUMENTS: Documents incorporated and cited in 20.11.49NMAC may be viewed atthe Albuquerque environmental health department, 400 Marquette NW, Room 3023, Albuquerque, NM 87102. [20.11.49.11 NMAC- N, 10/13/09]

20.11.49.12 COMPLIANCE WITH OTHERREGULATIONS: Compliance with 20.11.49 NMAC does
notrelieve a person from the responsibility to comply with any other applicable federal, state, or local statute or regulation. [20.11.49.12 NMAC- N, 10/13/09]

20.11.49.13 APPLICABILITY: A. Any source: (1) whose operation results in an emission ofa regulated air pollutant, including a fugitive emission, in excess ofthe quantity, rate, opacity or concentration specified by an air quality regulation orpermit condition; or (2) subjectto the requirements of 20.11.47NMAC, EmissionsInventoryRequirements, 20.11.41 NMAC,Authority-To-Construct, 20.11.42NMAC, OperatingPermits, 20.11.61 NMAC, Prevention ofSign!ficant Deterioration, or 20.11.60 NMAC, PermittingInNonattainmentAreas. B. Deviations under 20.11.42 NMAC, OperatingPermits, which do not result in excess emissions,

are not subjectto the provisions of20.11.49 NMAC. C. 20.11.49 NMAC does not create a separate cause ofaction for failure to obtain a permitunder 20.11.41 NMAC,Authority-To-Construct, 20.11.42 NMAC, OperatingPermits, 20.11.61 NMAC, Prevention of SignificantDeterioration, or 20.1 

## i .60 NMAC, PermittingIn NonattainmentAreas. [20.11.49.13 NMAC- N, 10113/09]

20.11.49 NMAC 220.11.49.14 OPERATION RESULTING IN AN EXCESS EMISSION: The emission ofa regulated air 

### pollutant in excess ofthe quantity, rate, opacity, or concentration specified in an air quality regulation or permit condition that results in an excess emission is a violation ofthe air quality regulation or permit condition and may be subject to 

### an enforcement action. The owner or operator ofa 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. [20.11.49.14 NMAC- N, 10113/09]

20.11.49.15 NOTIFICATION: A. The owner or operator ofa 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. The departmentmay require that the owner or operator ofasource provide supplemental information in addition tothat already required by 20.11.49.15 NMAC. The additional information shall bereported by the deadline specified by the department. (!) Initial report: The owner oroperator shall file an initial report, no laterthan the end ofthe next 

### regular business day after the time ofdiscovery ofan excess emission. The initial report shall include all available information regarding each item required by Subsection B of20.11.49.15 NMAC. (2) Final report: No later than 10 days afterthe end ofthe excess emission, the owneroroperator shall file a final report that contains specific and detailed information for each item required by Subsection B of 20.11.49.15 NMAC. 

### B. The report shall include the following information: (!) the name ofthe source; (2) the name ofthe ownerand operatorofthe source; (3) the name and title ofthe person preparing the report; (4) identifying information (e.g. permit imd database numbers); (5) the specific date(s) andtime(s) the excess emission occurred; (6) identification ofthe equipment involved and the emission point(s) (including bypass) from which 

### the excess emission occurred; (7) the airquality regulation orpermit conditionthatwas exceeded; (8) identification ofthe air contaminant(s) and the magnitude ofthe excess emission expressed in the 

### units ofthe air quality regulation or permit condition; (9) the method for determiningthe magnitude and duration ofthe excess emission; 

### (10) the cause and nature ofthe excess emission; (11) the stepstakento limit the duration and magnitude ofthe excess emission; 

### (12) the corrective action(s) taken to eliminate the cause ofthe excess emission; ifone or more corrective aCtions are required, the report shall include aschedule for implementation ofthose actions, with associated progress reports; ,ifno corrective actions are required, the report shall include a detailed explanation for that conclusion.

shutdown; (13) (14) 

### the corrective action(s) taken to preventa recurrence ofthe excess emission; whether the owner or operator**a~ributes** 

### the excess emission to 

### malfunction, startup or

(15) whetherthe owner oroperatorwill claim an affirmative defense under Subsections A, B or C of 20.11.49.16 NMAC; ifclaiming an affirmative defense, an analysis and the supporting evidence for each reason shall be submitted no later than 30 days after submittal ofthe final reportrequired by 20.11.49.15 NMAC; no later than 30 days after the earlier ofthe department's receipt ofthe final report orthe deadline for submitting the final 

### report, ifthe department receives a request for an extension from the owner or operator ofthe source, the department may grant an extension to complete the analysis notto exceed 30 additional days; and (16) the contents ofthe final report shall contain a signed certificationoftruth, accuracy, and 

### .completeness; the certification shall be signed by the person who is reporting the excess emission. 

### C. Ifthe period ofan excess emission extends beyond 10 days, the owneror operator shall submitthe final report required by SubsectionB of20.11.49.15 NMAC to the department within 72 hours ofthe date and time 

### the ·excess emission ceased. D. Alternative reporting. If-an owner or operator ofa source is subject to both the excess emission reporting requirements of20.11.49.15 NMAC and the reporting requirements of40 CFRParts 60, 61, and 63, and

20.11.49NMAC 3the federal reporting requirements duplicate the requirements of20.11.49.15 NMAC, then the federal reporting requirements shall suffice. [20.11.49.15 NMAC -N, 10113/09]

20.11.49.16 AFFIRMATIVE DEFENSES: All periods ofexcess emissions regardless ofcause are violations ofthe act and the rules promulgatedthereunder, the New Mexico AirQuality Control Act and rules promulgated thereunder, and applicable permit or other authorization ofthe air board. 20.11.49 NMAC provides an affirmative defense to owners and operators for civil or administrative penalty actions brought fofexcess emissions during periods ofstartup, shutdown malfunction or emergency, unless otherwise prohibited by Subsection D of20.11.49.16 NMAC. 20.11.49.15 .NMAC shall notbe construed as limiting EPA's or citizens' authority underthe act. The department may require the owneror operator ofa sourceto provide supplemental information in addition to that already required by 20.11.49.16 NMAC. The additional information shall be reported by the deadline specified by the department. 

### A. Affinnative defense for an excess emission during 

### malfunction: The owner oroperator ofa

source subjectto 20.11.49 NMAC may claim an affirmative defense for an excess emission during malfunction, against a civil penalty imposed in an administrative orjudicial enforcement action. There shall be no affirmative defense for an excess emission during malfunction, from the owner oroperator's liability or the department's claim for injunctive relieffor the excess emission. The owner oroperator claiming an affirmative defense for an excess emission during malfunction, shall bearthe burden ofproofincluding the demonstration ofthe following criteria: (1) the excess emission was caused by a malfunction; (2) the excess emission: (a) did not stem from any activity or eventthat could have been foreseen and avoided, or planned for; and (b) could not have been avoidedby betteroperation and maintenance practices; (3) to the maximum extent practicable the air pollution control equipment orprocesses were maintained and operated in a manner consistentwith 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 musthave been utilized, to the
extentpracticable, to ensure that such repairs were made as expeditiously as practicable; (5) the amount and duration ofthe excess emission (including any bypass) were minimizedtothe maximum extentpracticable during periods ofsuch emissions; (6) all possible steps weretaken to minimize the impact ofthe excess emission on ambient air quality; (7) all emission monitoring systems were kept in operation ifat all possible; (8) the owneror operator's actions in response to the excess emission were docUmented by properly signed, contemporaneous operating logs, or other relevant evidence; (9) the excess emissions werenot partofa recurring pattern indicative ofinadequate design, operation, or maintenance; and · (10) the owneror operator complied withthe notification requirements in 20.11.49.15 NMAC. B. Affirmative defenseTor an excess emission during

### startup orshutdown: The owner or operator ofa source subjectto 20.11.49 NMAC may claim an affirmative defense for an excess emission during startup or shutdown against a civil penalty imposed in an administrative orjudicial enforcement action. There shall be no affirmative defense for an excess emission during startup or shutdown, from the owner or operator's liability orthe department's claim for injunctive relieffor the eXcess emission. The owner or operator claiming an affirmative defense for an excess emission during startup or shutdown shall bearthe burden ofproofincluding the demonstration ofthe following criteria: (1) the excess emission occurred during a startup or shutdown; (2) the periods ofexcess emissions that occurred during startup or shutdown were short and infrequent and couldnot have been prevented through careful planning and design; (3) the exc.ess emissions were not part ofa recurring pattern indicative ofinadequate design, operation, or maintenance; (4) ifthe excess emissions were causedby a bypass (an intentional diversion ofcontrol equipment), then the bypass was unavoidable to prevent loss oflife, personal injury, or severe property damage; (5) at all times, the source was operated in a manner consistent with good practices for minimizing emissions;

20.11.49NMAC 4

### (6) the frequency and duration ofoperation in startup or shutdown mode was minimized to 

### the maximum extent practicable; (7) all possible steps were taken to minimize the impact ofthe excess emission on ambient air quality; 

### (8) all emissions monitoring systems were kept in operation ifat all possible; (9) the owner or operator's actions during the period ofexcess emissions were documented by properly signed, contemporaneoUs operating logs, or other relevant evidence; and (10) the owneror operator complied with the notification requirements in 20.11.49.15 NMAC. 

### C. Affirmative defense for an emergency. 

### (1) An emergency constitutes an affirmative defense to an action brought for noncompliance with a technology-based emission limitation ifthe owner or operator ofthe source demonstrates through properly signed, contemporaneous operating logs, or other relevant evidence that: (a) an emergency occurred and thatthe owneroroperatorcan identifY the cause(s) ofthe 

### emergency; (b) the source was being properly operated atthe time; (c) during the period ofthe emergency the owner or operator took all reasonable steps to 

### minimize levels ofemissions that exceeded the technology-based emission limitation; and (d) the owner or operator fulfilled the notification requirements under Subsection A of 

### 20.11.49.15 NMAC, including a description ofthe emergency, any steps taken to mitigate emissions, and corrective actions taken. · '

. (2) In 

### any enforcement proceeding, the owner or operator seeking to establish the occurrence ofan emergency has the burden ofproof. 

### D. Affirmative defensesprohibited. 

### The affirmative defense provisions ofthis section shall not be available for: (I) 

### claims for injunctive relief; (2) SIP limits or permit limits that have been settaking into accountpotential emissions during startup and shutdown, including, butnot limited to, limits that indicate they apply during startup and shutdown, and limits that explicitly indicatethey apply at all times orwithout exception; (3) excess emissions that cause an exceedance oftheNAAQS orPSD increments; (4) failure to meet federally promulgated emission limits, including, butnot limited to, 40 CFRParts 60, 61 and 63; or (5) violations ofrequirements that derive from 40 CFRParts 60,61 and 63 or any other federally 

### enforce.able performance standard or emission limit. E. Department's determination ofadequacy ofaffirmative defense. The department may issue a 

### determination regarding an owner or operator's assertion ofthe affirmative defense under Subsectjons A, B or Cof 20.11.49.16 NMAC on the basis ofany relevant information, including but not limited to information submitted pursuantto.20.11.49 NMAC orobtained through an inspection. Any such determination is not a final action and is 

### not reviewable, shall not be aprerequisite to the cOmmencement ofan administrative orjudicial enforcement action, does not constitute a waiver ofliability pursuantto 20.11.49.18 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 Subsections A, B or C of20.11.49.16 NMAC in 

### an administrative orjudicial enforcement action unless it asserted such defense pursuantto Paragraph (15) ofSubsection B 

### of20.11.49.15 NMAC. [20.11.49.16 NMAC- N, 10/13/09]

20.11.49.17 ROOT CAUSE AND CORRECTIVE ACTION ANALYSIS: A. Uponreceipt ofa written demand by the department, the owner or operator ofa source having an

excess emission, shall prepare an analysis that uses analytical tools determined by the department to be appropriate. The analysis shall contain the following information: (I) 

### an analysis describing the root cause and all contributing causes ofthe excess emission; and (2) an analysis ofthe corrective actions implemented or available to reduce the likelihood ofa

recurrence ofthe excess emission resulting from the causes identified under Paragraph (1) ofSubsectionA of 20.11.49.17 NMAC, including, as applicable: 

### (a) identification ofimplemented ofavailable corrective action alternatives, such as changes in design, operation and maintenance;

20.11.49NMAC 

### (b) the estimated cost associated with each corrective action alternative; (c) the probable effectiveness ofeach corrective action alternative;

5(d) ifno corrective action alternatives are available, a clear explanation providing an adequate justification for that conclusion; and

· (e) ifone ormore corrective actions are identified, a schedule for implementation and progress reports. B. The department shall make the demand for an analysis no later than 90 days afterreceipt ofthe final reportrequired by Subsection A of20.11.49.15 NMAC. C. The department may require the analysis authorized by Subsection A of20.11.49.17 NMAC after considering relevant factors. Examples ofrelevant factors include the significance ofthe excess emission, the nature

or pattern ofexcess emissions, and the history ofthe source, as well as any other factors determined to be relevant by the department. D. The completed analysis shall be submitted to the department no later than 60 days after the department's demand is received bythe owner oroperator ofthe source, pursuantto Subsection A of20.11.49.17 NMAC. Forgood cause shown, the department may grant an extensionto submitthe analysis. E. The owner or operator ofa source complying with 20.11.49.17 NMAC may assert a claim for confidential information protection. [20.11.49.17 NMAC- N, 10113/09]

20.11.49.18 FUTURE ENFORCEMENTACTION: The departmentmay commence an administrative or judicial enforcement action against the owneroropenitor ofa source for an excess emission for whichthe departmenthas made a determination pursuantto Subsection E of20.11.49.16 NMAC ifthe department determines thatthe excess emission is related to a pattern ofexcess emission events, poormaintenance, careless ormarginal operation, orother appropriate reason. [20.11.49.18 NMAC- N, 10113/09]

HISTORY OF 20,11.49 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. Regulation No. 19, Breakdown, Abnormal Operating Conditions, or Scheduled Maintenance; filed 3124/82.

History ofRepealed Material: 20.11.90.12 NMAC, Breakdown, Abnormal Operating Conditions, or.Scheduled Maintenance (filed 8/30/02)was repealed and replaced by 20·.11.49 NMAC, effective 10/13/09.

20.11.49 NMAC 

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