New Mexico: Albuquerque-Bernalillo County 

Codified at 40 CFR 52.1620( c) 

Second Table, See Part 49 
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 lacks jurisdiction. 

[20.11.49.2 NMAC- N, 10/13/09] 

20.l1.49.3 STATUTORY AUTHORITY: 20.11.49 NMAC is adopted pursuant to the authority provided in 

the New Mexico Air Quality 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 of Albuquerque 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: I 0/13/09, unless a later date is cited at the end of a section. 

[20.11.49.5 NMAC- N, 10113/09] 

20.l1.49.6 OBJECTIVE: To implement requirements for the reporting of excess 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 of which may limit, capture, reduce, confme, or otherwise control regulated air pollutants or 

convert for the purposes of control any regulated air pollutant to 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 a federal new source perfonnance standard or national emission standard for hazardous air pollutants 

incorporated by reference, or any condition of an air quality permit issued by the department. 

C. "Bypass" means the diversion of a regulated 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 of the same person (or persons under common control) except the activities of any vessel. 

Pollutant-emitting activities shall be considered as part of the same industrial grouping if they belong to the same 

major group (i.e., which have the same two-digit code) as described in the standard industrial classification 

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 of the pennittee, including acts of God or nature, which situation requires immediate corrective 

action to restore nonnal 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 

20.11.49 NMAC I 
I 

I 

I 

j 

I 

noncompliance to the extent caused by improperly designed equipment, lack of preventive maintenance, or careless 

or improper operation. 

F. "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. 

G. "Malfunction" means ~my 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. 

H. [Reserved] 

I. "Regular business day" means any day on which city of Albuquerque government offices are 

open for normal business. Saturdays, Sundays, and official federal and city of Albuquerque holidays are not regular 

business days. 

J. "Shutdown" means the cessation of operation of any air pollution control equipment or process 

equipment. 

K. "Startup" means setting into operation any air pollution control equipment or process equipment. 

L. "Stationary source" or "source" means any building, structure, facility, or installation which 

emits or may emit a regulated air pollutant. 

[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 of a 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 at the time the violation was committed. 

[20.11.49.9 NMAC- N, 10/13/09] 

20.11.49.10 SEVERABILITY: Iffor any reason any section, subsection, sentence, phrase, clause, wording or 

application of20.11.49 NMAC is held to be unconstitutional or otherwise invalid by any court or the United States 

environmental protection agency, the decision shall not affect the validity or application of remaining portions of 

20.11.49 NMAC. 

[20.11.49.10NMAC -N, 10113/09] 

20.11.49.11 DOCUMENTS: Documents incorporated and cited in 20.11.49 NMAC may be viewed at the 

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 OTHER REGULATIONS: Compliance with 20.11.49 NMAC does 

not relieve 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 of a regulated air pollutant, 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 20.11.47 NMAC, Emissions Inventory Requirements, 20.11.41 

NMAC,Authority-To-Construct, 20.11.42 NMAC, Operating Permits, 20.11.61 NMAC, Prevention ofSign!ficant 

Deterioration, or 20.11.60 NMAC, Permitting In Nonattainment Areas. 

B. Deviations under 20.11.42 NMAC, Operating Permits, which do not result in excess emissions, 

are not subject to the provisions of20.11.49 NMAC. 

C. 20.11.49 NMAC does not create a separate cause of action for failure to obtain a permit under 

20.11.41 NMAC, Authority-To-Construct, 20.11.42 NMAC, Operating Permits, 20.11.61 NMAC, Prevention of 

Significant Deterioration, or 20.1 i .60 NMAC, Permitting In Nonattainment Areas. 

[20.11.49.13 NMAC- N, 10113/09] 

20.11.49 NMAC 2 
20.11.49.14 OPERATION RESULTING IN AN EXCESS EMISSION: The emission of a regulated air 

pollutant 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. 

[20.11.49.14 NMAC- N, 10113/09] 

20.11.49.15 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. The department may require that the owner or operator of a source provide 

supplemental information in addition to that already required by 20.11.49.15 NMAC. The additional information 

shall be reported by the deadline specified by the department. 

(!) 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. 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 after the end of the excess emission, the owner or operator 

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 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 (e.g. permit imd 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. 

shutdown; 

(13) 

(14) 

the corrective action(s) taken to prevent a recurrence of the excess emission; 

whether the owner or operator a~ributes the excess emission to malfunction, startup or 

(15) whether the owner or operator will claim an affirmative defense under Subsections A, B or C of 

20.11.49.16 NMAC; if claiming an affirmative defense, an analysis and the supporting evidence for each reason 

shall be submitted no later than 30 days after submittal of the final report required by 20.11.49.15 NMAC; no later 

than 30 days after the earlier of the department's receipt of the final report or the deadline for submitting the final 

report, if the department receives a request for an extension from the owner or operator of the source, the department 

may grant an extension to complete the analysis not to exceed 30 additional days; and 

(16) the contents of the final report shall contain a signed certification of truth, accuracy, and 

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

C. If the period of an excess emission extends beyond 10 days, the owner or operator shall submit the 

final report required by Subsection B 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 of a source is subject to both the excess emission 

reporting requirements of20.11.49.15 NMAC and the reporting requirements of 40 CFR Parts 60, 61, and 63, and 

20.11.49 NMAC 3 
the 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 of excess emissions regardless of cause are violations 

of the act and the rules promulgated thereunder, the New Mexico Air Quality Control Act and rules promulgated 

thereunder, and applicable permit or other authorization of the air board. 20.11.49 NMAC provides an affirmative 

defense to owners and operators for civil or administrative penalty actions brought fof excess emissions during 

periods of startup, shutdown malfunction or emergency, unless otherwise prohibited by Subsection D of20.11.49.16 

NMAC. 20.11.49.15 .NMAC shall not be construed as limiting EPA's or citizens' authority under the act. The 

department may require the owner or operator of a source to 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 or operator of a 

source subject to 20.11.49 NMAC may claim an affirmative defense for an excess emission during malfunction, 

against a civil penalty imposed in an administrative or judicial enforcement action. There shall be no affirmative 

defense for an excess emission during malfunction, from 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 including the demonstration of 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 owner or 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 were not part of a recurring pattern indicative of inadequate design, 

operation, or maintenance; and · 

(10) the owner or operator complied with the notification requirements in 20.11.49.15 NMAC. 

B. Affirmative defense Tor an excess emission during startup or shutdown: The owner or operator 

of a source subject to 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 or judicial enforcement action. There shall be no 

affirmative defense for an excess emission during startup or shutdown, from 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 including the 

demonstration of the following criteria: 

(1) the excess emission occurred during a startup or shutdown; 

(2) the periods of excess emissions that occurred during startup or shutdown were short and 

infrequent and could not have been prevented through careful planning and design; 

(3) the exc.ess emissions were not part of a recurring pattern indicative of inadequate design, 

operation, or maintenance; 

(4) if the excess emissions were caused by a bypass (an intentional diversion of control 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 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's actions during the period of excess emissions were documented by 

properly signed, contemporaneoUs operating logs, or other relevant evidence; and 

(10) the owner or 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 if the owner or operator ofthe source demonstrates through properly signed, 

contemporaneous operating logs, or other relevant evidence that: 

(a) an emergency occurred and that the owner or operator can identifY the cause(s) of the 

emergency; 

(b) the source was being properly operated at the time; 

(c) 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 

(d) the owner or operator fulfilled the notification requirements under Subsection A of 

20.11.49.15 NMAC, including a description of the 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 of an 

emergency has the burden of proof. 

D. Affirmative defenses prohibited. The affirmative defense provisions of this section shall not be 

available for: 

(I) claims for injunctive relief; 

(2) SIP limits or permit limits that have been set taking into account potential emissions during 

startup and shutdown, including, but not limited to, limits that indicate they apply during startup and shutdown, and 

limits that explicitly indicate they apply at all times or without exception; 

(3) excess emissions that cause an exceedance ofthe NAAQS or PSD increments; 

(4) failure to meet federally promulgated emission limits, including, but not limited to, 40 CFR Parts 

60, 61 and 63; or 

(5) violations of requirements that derive from 40 CFRParts 60,61 and 63 or any other federally 

enforce.able performance standard or emission limit. 

E. Department's determination of adequacy of affirmative defense. The department may issue a 

determination regarding an owner or operator's assertion of the affirmative defense under Subsectjons A, B or C of 

20.11.49.16 NMAC on the basis of any relevant information, including but not limited to information submitted 

pursuant to.20.11.49 NMAC 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 ofliability pursuant to 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 of 20.11.49.16 NMAC in an administrative or judicial enforcement 

action unless it asserted such defense pursuant to Paragraph (15) of Subsection 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. Upon receipt of a written demand by the department, the owner or operator of a 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 of the excess emission; and 

(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 

20.11.49.17 NMAC, including, as applicable: 

(a) identification of implemented of available 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 of each corrective action alternative; 

5 
(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 demand for an analysis no later than 90 days after receipt of the 

final report required 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 of relevant factors include the significance of the excess emission, the nature 

or pattern of excess 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 by the owner or operator of the source, pursuant to Subsection A of20.11.49.17 

NMAC. For good cause shown, the department may grant an extension to submit the analysis. 

E. The owner or operator of a 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 ENFORCEMENT ACTION: The department may commence an administrative or 

judicial enforcement action against the owner or openitor of a source for an excess emission for which the 

department has made a determination pursuant to Subsection E of20.11.49.16 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. 

[20.11.49.18 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 of Repealed 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 6