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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 every stationary source within Bemalillo 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.

120.rr.49.2 NMAC - N, 10/13/091

20.11.49,3 STATUTORY AUTHORITY: 20.1 1.49 NMAC is adopted pursuant to the authority provided in

the New Mexico Air Quality Control Act, NMSA 1978 Sections 74-24,74-2-5; the Joint Air 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 and 9-5-1-5.

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 end of a section.

[20.] 1.49.5 NMAC - N, l0/13i09]

20.11.49.6 OBJECTM: To implement requirements for the reporting of excess emissions and establish

afürmative defense provisions for facility owners and operators for excess emissions.

120.11.49.6 NMAC - N, l0/13/091

20.11,49.7 DEFINITIONS: In addition to the definitions in 20.11.49 NMAC, the definitions in 20.1l.l

NMAC apply unless there is a conflict between defrnitions, in which case the deflnition in 20.1 I .49 NMAC 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

convert for the purposes ofcontrol 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 \ryater injection).

B. 'oAir quality regulation or permit condition' means any regulation adopted by the board,

including a federal new 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 diversion of a regulated air contaminant around air pollution control

equipment or process equipment.

D. "Building, structure, facility, or installation" means all of the 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 of the same industrial grouping if they belong to the same

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

manual, 1972, as amended by the 1977 supplement (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 acts of God or nature, 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

20.r1.49 NMAC
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 ofthe quantity, rate, opacity or concentration specified by an air qualiry regulation or permit condition.

G. "Malfunction" means any sudden and unavoidable 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 any day on which city of Albuquerque government offices are

open for normal business. Saturdays, Sundays, and official federal and cþ ofAlbuquerque 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 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 amendmenro 20.1 1.49 NMAC which is filed with the state records

center shall not affect actions pending for violation of a city or counfy ordinance, or 20. I1.49 NMAC. Prosecution

for a violation under prior regulation wording shall be govemed and prosecuted under the 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 court or the United States

environmental protection agency, the decision shall not affect the validity or application of 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 operation results 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 1.60 NMAC, Permitting In Nonattainment Areøs.

B. Deviations under 20. I 1.42 NMAC, Operating Permits, which do not result in excess emissions,

are not subjecto the provisions of 20.1 1.49 NMAC.

C. 20.11.49 NMAC does not 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 NMAC
2c,.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

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 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 having an 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 that already required by 20.1 1.49.15 NMAC. The additional information

shalt be reported by the deadline specified by the department.

(l) Initialreport: Theowneroroperatorshallfrleaninitialreport,nolaterthantheendofthenext

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 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 report that contains specific and detaited information for each item required by 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 name and title of the person preparing the report;

(4) identifuing information (e.g. permit and database numbers);

(5) the specihc 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 conditíon;

(9) the method for determining the magnitude and duration of the excess emission;

(10) the cause and natu¡e ofthe 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 fhose actions, with

associated progress reports; ifno corrective actions are required, the report shall include a detailed explanation 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 and the supporting evidence for each reason

shall be submitted no later than 30 days after submittal of the final report required by 20.1 | .49.15 NMAC; no later

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

report, ifthe departrnent receives a request for an extension from the owner or operator ofthe source, the departrnent

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

(16) the contents ofthe final report shall contain a 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 submit the

final report required by Subsection B of 20. I 1.49 .15 NMAC to the deparrnent within 72 hours of the 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 of 20. I | .49 .15 NMAC and the reporting requirements of 40 CFR Parts 60, 61, and 63, and

20.n.49 NMAC
the federal reporting requirements duplicate the requirements of 20. I I .49. 15 NMAC, then the federal reporting

requirements shall suffice.

Í20.r1.49.t5 NMAC - N, Io/13i091

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 afftrmative

defense to owners arid operators for civil or administrative penaþ actions brought for excess emissions during

periods of startup, shutdown malfunction or emergency, unless otherwise prohibited by 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 addition to that

already required by 20.I 1.49.16 NMAC. The additional information shall be reported by the deadline specified by

the department.

A. Affrrmative defense for an excess emission during mølfunctìon: The owner or operator of a

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

(l) the excess emission was caused by a malfrurction;

(2) the çxcess emission:

(a) did not stem from any activity or event that could have been foreseen and avoided, or

planned for; and

O) 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 t}te 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;

(S) 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 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 emission during 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. There shall 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 bear the burden ofproofincluding the

demonshation of the following criteria:

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

Ø the periods of excess emissions that occurred during starnrp or shutdown were short and

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),

then the bypass was unavoidable to prevent loss oflife, 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 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 20.1 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 relevant evidence 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

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

enforceable performance standard or emission limit.

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 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 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 pursuanto 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 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 departmento 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 corrective actions implemented or available to reduce the likelihood of a

reculrence ofthe excess emission resulting from the causes identified under Paragraph (l) ofSubsection A of

20-11.49.17 NMAC, including, as applicable:

(a) identification of implemented or available corrective action altematives, such as changes in

design, operation and maintenance;

O) the estimated cost associated with each corrective 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 make the demand for an analysis no later'tha¡r 90 days after 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, 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

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

confi dential 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 other appropriate 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 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; ñled3/24182.

History of Repealed Material: 20.11.g0.I2NMAC, Breakdown, Abnormal Operating Conditions, or Scheduled

Maintenance (filed 8/30/02) was repealed and replaced by 20.11.49 NMAC, effective 10/13109.

20.11.49 NMAC