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TITLE 20 ENVIRONMENTAL PROTECTION CHAPTER 1I ALBUQUERQUE - BERNALILLO COUNTY AIR QUALITY CONTROL BOARD PART 49 EXCESS EMISSIONS

20.11.49.1 ISSUING AGENCY: Albuquerque - Bernalillo County Air Quality Control Board,c/o Environmental

Health Department.

P.O.Box 1293,

Albuquerque,

New Mexico 87103. Telephone: (505) 768- 260r. [20.] r.49.1

NMAC - N, lo/l 3/09]

20.rr.49.2 SCOPE: A. 20.11.49

NMAC is applicable

to everystationary

source within Bemalillo county. B. Exempt: 20.11.49 NMAC doesnot apply to sources within Bernalillo countythat are located on indian lands over whichthe Albuquerque-Bernalillo county air quality

control boardlacks

jurisdiction.
120.rr.49.2

NMAC - N, 10/13/091

20.11.49,3 STATUTORY AUTHORITY: 20.11.49 NMAC is adopted

pursuant to the authorityprovided in the New Mexico

Air Quality Control

Act, NMSA 1978

Sections 74-24,74-2-5;the JointAir Quality Conhol 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 9-5-14 and9-5-1-5. 120.tr.49.3

NMAC - N, l0/l 3/091

20.11.49.4 DURATION: Permanent. 120.rr.49.4

NMAC - N, lo/l3i09l

20.11.49.5 EFFECTM DATE: 10/13/09, unless a later date is cited at the endof a section. [20.]1.49.5

NMAC - N, l0/13i09]

20.11.49.6 OBJECTM: To implement requirements

for the reportingof excess emissions

and establish afürmative defense

provisions

for facility ownersand operators for excess

emissions. 120.11.49.6

NMAC - N, l0/13/091

20.11,49.7 DEFINITIONS: In addition to thedefinitions

in 20.11.49

NMAC, the definitions in 20.1l.l NMAC applyunless

thereis a conflictbetween defrnitions,

in which case

the deflnitionin 20.1

I .49NMAC shall govern. A. 4Air pollution control equipment" means any device,

equipment,

process or combination thereof, the operation

of which may limit, capture, reduce, confine, or otherwise

control regulated

air pollutanfs

or convertfor the purposes ofcontrol any regulated air pollutant

to another

form, another

chemicalor another

physical state(e.g.sulfur recoveryunits, acid plants,baghouses, precipitators,

scrubbers,

cyclones,

water sprays,

enclosures, catalyticconverters,

and steam

or \ryater injection). B. 'oAir quality regulationor permit condition' means any regulation

adopted by the board, including a federalnew source performance

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 diversionof a regulated air contaminant

aroundair pollution control equipment

or process

equipment. D. "Building, structure, facility, or installation" means all of the pollutant-emitting activities which belong

to the sameindustrialgrouping,are located on one or more contiguous or adjacent

properties,

and are under the control ofthe same person (or persons

under commoncontrol) except the activities ofany vessel. Pollutant-emitting

activitiesshall be considered as part of the same

industrialgrouping if they belong to the same major group ( i.e.

, which havethe same two-digit code)asdescribed nfhe standard industrial classifcation manual, 1972,

as amended

by the 1977supplement (U.S. government

printing offlce stock numbers 4l0l-0065 and 003-005-00

I 76-0,respectively). E. ttEmergencyt means any situation

arising from sudden

and reasonably

unforeseeable

events beyond the control of the permittee, including actsof God or nature, which situation requiresimmediate corrective actionto 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



### 20.r1.49 NMACnoncompliance to the extentcaused

by improperlydesigned equipment,

lack of preventive

maintenance,

or careless
or improper

operation. F. "Excess

emission" means

theemission

of an air contaminant,

including

a fugitive

emission,

in
excess ofthe quantity,rate,opacity or concentration specifiedby an air qualiry regulationor permit condition. G. "Malfunction" means any sudden

andunavoidable

failure of airpollution confrol equipment

or process equipment

beyond the control of the owner or operator, including malfirnction 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

anydayon which city of Albuquerque government

offices are openfor normal business.Saturdays, Sundays,

and official federaland cþ ofAlbuquerque holidaysare 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 sourcet' or ttsource"

means any building,

structure,

facility,or installation

which emits or may emit a regulated air pollutant. Í20.1t.49J

NMAC - N, l0/13/09I

20.11.49.E VARIANCES: [Reserved] [20.]1.49.8

NMAC - N, l0l13/09]

20.11.49.9 SAVINGS CLAUSE: Any amendmenr o 20.1 1.49

NMAC which is filed with the state records center shall not affect actionspendingfor violation of a city or counfyordinance, or 20. I1.49 NMAC. Prosecution for a violation under

prior regulation

wording shall be govemed and prosecuted

underthe statute,

ordinance,

part,or regulation

section in effect at the time the violation was cornmitted. Í20.1 1.49.9 NMAC - N, l0/l 3/09I

20.11.49.10 SEVERABILITY: If for any re¿rson any section,

subsection,

sentence,

phrase, clause, wording or application

of 20-11.49

NMAC is held

to be unconstitutional

or otherwise

invalid by any courtor the United States environmental

protection

agency, the decisionshall not affect the validity or applicationof remaining portions of 20.1t.49 NMAC. [20.]1.49.10

NMAC - N, t0/13/09]

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.tt.49.1r

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. 120.tt.49.12

NMAC - N, l0/13/091

20.11.49.13 APPLICABTLITY: A. Any source: (l) whose

operationresults in an emission of a regulated

air pollutant, including a fugitive emission, in excess

ofthe quantity, rate, opacþ or concentration specifred

by an air quality regulation or permit condition;

or (2) subject

to the requirements

of 20.11.47

NMAC, Emissions

lwentory Requirements,z0.Ll.4l NMAC, Authorþ-To-Construct,20.ll.4ZNMAC, OperatingPermits,20.ll.6l NMAC, PreventionofSignificant Deterioration,or 20.t 1.60NMAC, Permitting In Nonattainment Areøs. B. Deviationsunder20. I 1.42NMAC, OperatingPermits,which do not result in excess emissions,
arenot subject

o the provisions

of 20.1 1.49 NMAC. C. 20.11.49

NMAC doesnot cÍeate a separate

cause of action for failure to obtain a permit under 20.11.41 NMAC, Authority-To-Construct,20.ll.42NMAC, OperatingPermits,20.ll.6 I NMAC, Preventìonof Significant Deterioration,or 20.11.60 NMAC, Permilting In Nonattainment Areas. Í20.tt.49.13

NMAC - N, r0/13/091



### 20.t1^.49 NMAC2c,.lt.4g.l4 OPERATION RESULTING IN AN EXCESS EMISSION: The emission of aregulated

air pollutant in exôess

ofthe quantity, rate,opacity, or concentration specif,red

in an air quality regulation or permit conditionthat resultsin an excess emissionis a violation of the air quality regulation or permit conditionand 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, 10/13/09]

20.11.49.15 NOTIFICATION: A, The owner or operator of a source

havingan excess

emission

shall report the following information

to the department

on forms provided by the department. The department

may authorize

the submiftal

of such reports

in elecfionic format. The departrnent may require

that the owner or operator of a source

provide supplemental

information

in addition

to thatalready

required by 20.1 1.49.15 NMAC. The additional information shalt be reported

by the deadline

specifiedby the department. (l) Initialreport: Theowneroroperatorshallfrleaninitialreport,nolaterthantheendofthenext regular business

day after the time of discovery of an excess

emission. The initial report shall includeall available information

regarding

each item required

by Subsection

B of 20.11.49.15

NMAC. (2) Final report: No later than l0 days after the end of the excess emission,

the owner or operator shall file a final reportthat contains specific and detaited

information for each item requiredby Subsection B of 20.11.49.1s

NMAC. B. The report

shall include

the following information: (1) the name

ofthe source; (2) the name

ofthe owner and operator ofthe source; (3) the nameand title of the person preparing

the report; (4) identifuing information (e.g. permit anddatabase numbers); (5) the specihc date(s) and time(s)the excess

emission

occurred; (6) identificationof the equipment involved andthe emission point(s) (including bypass) from which the excess

emission

occurred; (7) the air quality regulation or permit conditionthat was exceeded; (8) identificationof the air contaminant(s) and the magnitude

of the excess

emission

expressed

in the units of the air quality regulationor permit conditíon;

(9) the method

for determining

the magnitude

and durationof the excess emission; (10) the cause

and natu¡e

ofthe excess

emission; (11) the steps

taken to limit the duration

andmagnitude

of the excess

emission; (12) the corrective

action(s) takento eliminate

the cause

of the excess

emission;if one or more corrective

actions are required,

the report shall includea schedule for implementation

of fhoseactions,

with associated

progress reports; ifno corrective actions are required,

the report shall include a detailedexplanation for that conclusion.

(13) the corrective

action(s) taken to prevent

a recurence ofthe excess emission; (14) whether

the owner or operator

attributes

the excess

emission

to malfunction, stafup or shutdown; (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 affumative defense, an analysis

andthe supporting

evidence

for eachreason shall be submitted

no laterthan 30 days after submittal of the final report requiredby 20.1 | .49.15NMAC; no later than 30 days

after the ea¡lier of the department's receipt of the final report or the deadline for submittingthe final report, ifthe departrnent receives a request

for an extension

from the owner or operator ofthe source,

the departrnent may grantan extension to complete

the analysis

not to exceed

30 additional

days;and (16) the contents

ofthe final report shall containa signed certification oftmth, accuracy, and completeness;

the certifìcation

shall be signed

by the person

who is reporting

the excess

emission. C. If the period of an excess emission

extends beyond l0 days,

the owner or operator

shall submitthe final report required

by Subsection

B of 20. I 1.49

.15 NMAC to the deparrnent within 72 hoursof the dateandtime the excess

emission

ceased. D. Alternative reporting. If an owner or operator of a source

is subject

to both the excess

emission reportingrequirements

of 20. I | .49.15 NMAC andthe reporting requirements of 40 CFR Parts

60, 61, and 63, and



### 20.n.49 NMACthe federalreporting requirements

duplicate

the requirements

of 20. I I .49.

15NMAC, then the federalreporting requirements

shall suffice. Í20.r1.49.t5

NMAC - N, Io/13i091

20.11.49.16 AFFIRMATIVE DEFENSES: All periodsof excess emissions

regardless

of cause areviolations of the act andthe 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 afftrmative defense to owners

aridoperators

for civil or administrative penaþ actions

broughtfor excess

emissions

during periodsof startup,

shutdown

malfunctionor emergency, unless otherwise

prohibitedby Subsection D of 20.11.49.16 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 additionto that already required by 20.I 1.49.16

NMAC. The additional informationshall be reported by the deadline

specified

by the department. A. Affrrmative defense for an excess

emissionduring mølfunctìon: The owner or operator of a
source subject to 20.11.49

NMAC may claim an affirmative defense for an excess

emissionduring malfrtnction, against a civil penalty imposed in an administrative

or judicial enforcement action. There shall be no affrmative defense for an excess

emission

during malfunction,from the owner or operator's liability or the department's claim for injunctiverelief for the excess emission. The owner or operator claiming an affirmative defense for an excess emission

during malfunction,shall bearthe burdenof proof including the demonstration of the following criteria: (l) the excess

emission

was caused

by a malfrurction; (2) the çxcess

emission: (a) did not stemfrom any activity or event that could havebeen

foreseen and avoided,

or planned for; and O) could not havebeen avoided by betteroperation

and maintenance

practices; (3) to the maximum extent practicable the air pollution control equipment or processes

were maintained

andoperated

in a manner

consistent

with good practice

for minimizing emissions; (4) repairs

were madein an expeditious fashionwhen t}te operator knew or shouldhave known that applicable

emission

limitations were being exceeded; off-shift labor andovertimemust have beenutilized, to the extent practicable,

to ensure

that such repairs

were made

as expeditiously

as practicable; (5) the amountand durationof the excess emission

(including any bypass)

were minimized

to the maximum extentpracticable during periodsof suchemissions; (6) all possible

steps were takento minimize the impactof the excess emission

on ambient

air quality; (7) all emission monitoring systems

were kept in operation

if at all possible; (S) the owner or operator's actionsin response

to the excess

emission

were documented

by properly signed, contemporaneous

operatinglogs, or other relevantevidence; (9) the excess

emissions

were not part of a recurring pattem 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 for an excess

emissionduring stailup o¡ shutdown: The owner or operator of a source

subject to20.11.49 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. Thereshall be no aff,rrmative

defense for an excess

emission

during startup

or shutdown,

from the owrìer or operator's liability or the department's

claim for injunctive relief for the excess emission. The owner or operator claiming an amrmative defense for an excess

emission

during startup

or shutdown

shall bearthe burden

ofproofincluding the demonshation

of the following criteria: (l) the excess

emission

occurred

during a startup

or shutdown; Ø the periodsof excess emissions

that occurred

during starnrp

or shutdownwere shortand infrequent

and could not have been prevented

through careful planning and design; (3) the excess

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 contol equipment), thenthe bypass

was unavoidable

to prevent lossoflife, personal injury, or severe

propefty damage; (5) at all times, the sou¡ce was operated

in a manner

consistent

with good practices

for minimizing emissions:



### 20.11.49 NMAC(6) the frequency and durationof operation in startup

or shutdown

mode was minimizedto the maximum extentpracticable;

(7) all possible

steps were takento minimizethe impactof the excess emission

on ambient

air quality; (8) all emissions monitoring

systems werekept in operation

if at all possible; (9) the owner or operator's actionsduring 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 20.1 1.49. l5 NMAC. C. Affirmative defense for an emergency. (l) An emergency

constitutes

an affirmative defense

to an action brought for noncompliance with a technology-based

emission

limitation if the owner or operator of the source

demonstrates

through properly signed, contemporaneous

operating

logs, or other relevantevidence that: (a) an emergency

occurred

and that the owner or operator can identiff the cause(s) ofthe emergency; (b) the source was being properly operated at the time; (c) during the period ofthe emergency the owner or operator

took all reasonable

steps to minimizelevels

of emissions

that exceeded

thetechnology-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,

anysteps

taken to mitigate

emissions,

and conective actions taken. (2) In any enforcement proceeding,

the owner or operator

seeking to establish

the occurrence

ofan emergency

has the burden

ofproof. D. Affirmative defenses prolr íbìted. The affirmative defense provisions of this section shall not be available

for: (l) claims

for injunctive

relief; Ø SIP limits or permit limits that havebeen settaking 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 indicatethey apply at all times or without exception;

(3) excess

emissions

that cause

an exceedance

of the 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) violationsof requirements that derive from 40 CFR Parts 60, 6l and 63 or any other federally enforceable

performance

standard or emissionlimit. E. Department's determination of adequacy of afTirmative

defense.

The deparmrent

may issue

a determination

regarding

an owner or operator's

asserfion

of the affirmative defense under Subsections

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 20.1I .49 NMAC or obtained through an inspection.Any suchdetermination is not a final action and is not reviewable,

shall not be a prerequisite to the commencement

of an administrative

or judicial enforcement action, doesnot constitute

a waiver of liabiliry 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 o Paragraph

(15) of Subsection

B of 20.11.49.15

NMAC. 120.1t.49.t6

NMAC - N, 10/13/091

20.11.49.17 ROOT CAUSE AND CORRECTIVE ACTION A]TIALYSIS: A. Upon receiptof a written demand by the department,

the owner or operator

of a source

havingan excess emission,

shall prepare

an analysis

that uses analytical

tools determined

by the department

o be appropriate. The analysis

shall contain

the following information: (l) an analysis

describing

the root cause

and all contributing

causes ofthe excess

emission;

and (2) an analysis

ofthe correctiveactions implemented

or available

to reduce

the likelihood of a reculrence

ofthe excess

emission

resultingfrom the causes identified underParagraph (l) ofSubsectionA of 20-11.49.17

NMAC, including,

asapplicable: (a) identificationof implemented or available

corrective

action altematives,

suchas changes

in design, operation

and maintenance; O) the estimated

cost associated

with eachcorrective

action alternative; (c) the probable

effectiveness

ofeach corrective

action alternative;

20.|.49 NMAC(d) if no corrective action altematives

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 makethe demand for an analysis

no later'tha¡r

90 daysafter receipt

of the final report

required by Subsection

A of 20.1

1.49.15 NMAC. C. The departnent may require the analysis

authorized

by Subsection

A of 20.1I.49.17 NMAC after considering

relevant factors. Examples

of relevânt

factors include

the signif,rcance

of the excess

emission,

the nature

or pattern

ofexcess

emissions,

andthe 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 laterthan 60 days afterthe deparEnent's

demand is received

by the owner or operator ofthe source,

pursuant to Subsection

A of20.1 1.49.17 NMAC. For good cause shown, the department

may grant an extension to submit the analysis. E. The owner or operatôr of a sou¡ce

complying with 20. I | .49.17 NMAC may assert

a claim for confidential information protection. [20.] r.49.

17 NMAC - N, to/t3t09]

20.11.49.18 FUTURE ENFORCEMENT ACTION: The deparlnent may commence an administrative

or judicial enforcement

action against

the owner or operator

of a source

for an excess

emission

for which the department

has made

a determination

pursuant to Subsection

E of 20.1 1.49.16

NMAC if the departrnent determines

, that the excess

emission

is related

to a pattern

of excess

emission

events, poor maintenance,

careless or marginal operation,

or otherappropriate

reason. 120.11.49.18

NMAC - N, r0/13/091

HISTORY OF 2O.I

I.49 NMAC: Pre-NMAC History: The material in this part was derivedfrom that previouslyfiled with the Commission of Public Records

- State Records Center and Archives. Regulation

No. 19, Breakdown,

Abnormal Operating

Conditions,

or Scheduled

Maintenance;

ñled3/24182.
History of Repealed

Material: 20.11.g0.I2NMAC, Breakdown,

Abnormal

Operating

Conditions,

or Scheduled Maintenance

(filed 8/30/02)

wasrepealed

and replaced

by 20.11.49

NMAC, effective10/13109.



### 20.11.49 NMAC