### Technical Support Document

NEW MEXICO TITLE 20 ENVIRONMENTAL PROTECTION, CHAPTER 11 ALBUQUERQUE-BERNALILLO COUNTYAIR QUALITY CONTROL BOARD, PART 49 EXCESS EMISSIONS (20.1L49 NMAC - Excess

Emissions)

November

6.2009

### Introduction

This Technical Support Document (TSD) concerns our evaluationof revisionsto the Albuquerque-Bemalillo County New Mexico State ImplementationPlan (SIP), New Mexico Title 20, Chapter 11 Albuquerque-Bernalillo County Air Quality Control Board, Part 49 Excess Emissions

(20.11.49

NMAC - Excess

Emissions).

This revision

to the New Mexico SIPwas submitted with a September 23,2009 letter from the Govemor's Offrce to EPA. This letter was received in EPA Region6 on November 6, 2009 (the September 23,2009 submittal).

The submittal is on behalf of the Albuquerque Environmental Health Department(AEHD).

This TSD consists

of Chapters

A through E. Chapter

A presents

the existing EPAapprovedprovision of the SIP concerningexcess emissions

titled Breakdown,Abnormal Operating Conditions, or Scheduled Maintenance. ChapterB presents the proposed

20.II.49 NMAC - ExcessEmissions, and our section-by-section evaluation of the proposal.ChapterC presents the proposed20.I1.65

NMAC - Volatile Organic Compounds.Chapter

D presents

the proposed20.11.69

NMAC - Pathological

Waste Destructors

(a "state-only" rule). ChapterE presents the proposedz}.Il.90 NMAC - Source Surveillance,

Administration

and Enforcement.

The existing EPA-approved provisions of the New Mexico SIP concerning excess emissions,

presented

in Chapter

A, was titled Breakdown,Abnormal OperatingConditions, or Scheduled

Maintenance,

and was approvedinto the New Mexico SIP for Albuquerque-Bernalillo Countyon04ll0ll980 (42 FR 24468) at 40 CFR 52.1620

(cXl1). See

Chapter A of this TSD.

With this submittal AEHD is repealingits existing EPA-approved provisions of the New Mexico SIP concerningexcess emissions

titled Breakdown,Abnormal OperatingConditions, or Scheduled

Maintenance

which was approvedinto the New Mexico SIP for AlbuquerqueBernalillo County on04ll0l1980 (42 FR 24468) presented

in TableA of this document, and replacing it with the proposed version of Part 49 presented in Table B of this document.

The AEHD is amending2}.ll.65 NMAC - Volatile Organic Compounds,

and 20.11.69 NMAC - PathologicalWaste Destructors to correct the Part 49-related cross-references,

but is only submitting the revised 20.11.65NMAC as a revision to the New Mexico SIP for Albuquerque-Bernalillo County. SeeChapters C and D of this documentfor details.

The AEHD is also amending 20.fi.I}NMAC- SourceSurveillance, Administration and Enforcement

to properly reflect the repeal of the existing Breakdown,Abnormal Operating Conditions,

or Scheduled

Maintenance

provisions

of 20.11.90

NMAC. The revised

20.11.90 NMAC is also being submitted as a revision to the New Mexico SIP for Albuquerque-Bernalillo County. SeeChapterE of this document. ì

I Ii 

# I
ì. l I

### ChapterA

Table A -- Existing EPA-approved provisions of the New Mexico SIP for AlbuquerqueBernalillo Corurty is titled Breakdown,Abnormal Operating Conditions, or Scheduled Maintenance,

and was approvedinto the New Mexico SIP on 0411011980 (42 FR 24468) at 40 CFR52.1620

(cXl1).

This sectionstates

that emissions

of air contaminants

in excess

of limits are not violations. This includes excess emissions

due to scheduled

maintenance

activities. Sucha statement

doesnot conform with EPA guidance documents

and national policy on excess emissions. Therefore,repealof this section is acceptable, and should be approved. BREAKDOWN, ABNORMAL OPERATING CONDITIONS, OR SCHEDULED MAINTENANCE

19.01 Operation of any equipment or air pollution control devicesor apparatus so as to cause

emissions

of air contaminants

in excess

of limits set by theseair pollution control regulations,which is a direct result of breakdown of equipment or of abnormal operating conditions, or is a direct result of the shut-down of such equipmentor air pollution control devicesor apparatus for scheduled

maintenance,

is not a violation ofthese air pollution control regulations, provided:

A. As to scheduled

maintenance,

the occurrenceis reported in advance to the Director during his working hours, and that such work is performed during periods of non-operationand when the Air Pollution Potential Index is under 50.

B. As to breakdown of equipmentor abnormal operatingconditions, the occurrence has been reportedto the Director
as soon as practicable,but no later than two (2) hows after occurence, exceptthat when the Director's office is closed, such report shall be made within two (2) hours after said office reopens for regular business.

C. Repairsare made with maximum, reasonable eflort, including use of off-shift labor, overtime or work periods of non-operation.

D. The emissionof air contaminants is minimized as much as reasonably possible during breakdown of equipment, abnormal operatingconditions or scheduled maintenance.

E. In the event of emission of air contaminants of a nature or in quantitieswhich would endanger public health or safety, such emission is stoppedentirely or reducedto harmless levels as soon as possible.

F. Breakdown of equipment or abnormaloperating conditions do not occur with such frequency that careless, inal. unsafe

or deliberateabnormaloperation is indicated.

### Chapter B

The AEHD repealed

the existing EPA-approved excess emissions

provisions (see

Table A), and replaced

it with a revised

version of Part49 (20.I1.49 NMAC - Excess Emissions)

rule with a State

effective date of October 14,2009. Vy'e received this revision, presented in Table B below, from AEHD with a cover letter, signedby Govemor Bill Richardson, dated September 23,2009. The AEHD is requesting that the Part49 (20.11.49 NMAC - Excess

Emissions) contained

with the September

23,2009 submittal become apart of New Mexico SIP for Albuquerque-Bernalillo County.

Table B -- The proposed 20.11.49

NMAC - Excess

Emissions



### 20.L1.49.1 ISSUING AGENCY: Albuquerque - Bernalillo

County Air QualityControl Board, c/o Environmental

Health Department.

P.O.Box 1293,

Albuquerque,

New Mexico 87103. T 

### 50s)

768-2601. This sectionsets

fonh the authority of the agencyresponsible for issuing the rule. This section should be approved.

20.11.49.2 SCOPE: A. 20.11.49

NMAC is applicableto every stationarysource within Bernalillo county. B. Exempt: 20.IL49 NMAC doesnot apply to sources within Bernalillo county that
are locatedon indian lands over which the Albuquerque-Bernalillo county air quality control board lacks iurisdictron. This sectionestablishes the geographic

areaaffectedby the rule. This section should be approved.

20.11.49.3 STATUTORY AUTHORITY: 20.11.49NMAC is adopted pursuant to the authority

providedin the New Mexico Air Quality Control Act, NMSA 1978SectionsT4-2-4, 74-2-5; the Joint Air Quality Control Board Ordinance, Bemalillo County Ordinance No. 94-5, Sections 4 and5; and the Joint Air Quality Control Board Ordinance,Revised Ordinances of Albuquerque

1994. Sections 9-5-l-4 and9-5-l-5. This sectiondesignates the agencyresponsible for issuing the rule. This sectionshould be approved.



### 20.11.49.4 DURATION: Permanent. This sectionstates

that the rule is not temporary in nature. This sectionshould be approved.



### 20.11.49.5 EFFECTIVE DATEz 10113109. unless alaterdate

is citedat the end

of a section.This sectionprovides for the effective dateof the rule for state purposes. This rule will become a part of the federally enforceable New Mexico SIP upon final approval. This sectionshould be approved.



### 20.11.49.6 OBJECTIVE: To implement requirements

for the reporting

of excess emrssrons and est¿blish affirmative

defense provisions

for facility owners

and operators for excess emissions. This secJion

states the intendedobjective and purposes of the rule. This section should be approved.

20.11.49.7 DEFINITIONS: In addition to the definitions in20.11.49NMAC, the definitions in20.I1.1 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 combinationthereof,the operationof which may limit, capture, reduce, confine, or otherwise control regulated

air pollutants or convert for the purposes of control any regulated air pollutant to another

form, anotherchemical 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" me¿ms any regulation adopted by the board, including a federal new sourceperformance standard or national emissionstandard 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 regulatedair contaminant around air pollution control equipmentor process equipment. D. "Building, structure, facility, or installation" means all of the pollutantemitting activities which belong to the sameindustrial grouping, are located on one or more contiguãus

or adjacent

properties,

and are under the control of the s¿Ime person(or persons

under coÍrmon control) exceptthe activities of any vessel. Pollutant-emitting activities shall be considered

as part of the sameindustrial 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 ([J.S. government

printing offrce stock numbers 4 I 0 1 -0065and 003

-00 5 -00 17 6-0, respectively). E. "Emergency" meansany situation arising from sudden and reasonably unforeseeable

events beyondthe control of the permittee, including acts of God or nature, which situation requiresimmediatecorrective action to restorenormal operation,and that causes the
source to exceed

a technology-based

emissionlimitation due to unavoidableincreases in emissions

attributable

to the emergency. An emergency shall not include noncompliance to the extent caused

by improperly designed equipment,lack of preventive maintenance, or careless

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

of the quantity, rate,opacity or concentration specif,red

by an air quality ion or permit condition.G. "Malfunction" means any sudden

and unavoidable

failure of air pollution control equipmentor process

equipmentbeyond the control of the owner or operator, including malfunction during startupor 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. [Reservedl L "Regular business day" means any day on which city of Albuquerque govemmentoffices 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 operationof any air pollution control equipmentor process

equipment. K. "Startup" means setting into operationany air pollution control equipmentor process equipment. L. ttstationary source" or ttsourcet'means any building, structure, facility, or installation which emits or may emit a regulatedair pollutant. This sectionproperly defines specific terms relevantto the rules governing excess emissions; these definitions should clarify application of the rule and prevent potential confusion. This sectionshould be approved.



### 20.1I.49.8 VARIANCES: Not relevant.thus no evaluation is necessary.

20.11.49.9 SAVINGS CLAUSE: Any amendment to 20.11.49

NMAC which is filed with the staterecordscentershall not affect actionspending 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

underthe statute,

ordinance,

part, or regulation sectionin effect at the time the violation was committed. This section is a part of the template usedfor Chapter 11 Air Quality. Its purposeis to clarify the application of provisions not held invalid. This sectionshould be approved.



### 20.11.49.10 SEVERABILITY: If for any reason anysection,

subsection,

sentence, phrase, clause, wording or application

of 20.1 1.49 NMAC is held

to beunconstitutional

or otherwise invalid by anycourt

or the UnitedStates

environmental

protection

agency, the decision

shall not affectthe validitv or application of remainine

portions of 20.11.49

NMAC This section is a part of the template usedfor Chapter 11 Air Quality. Its purposeis to clarify the application of the rule

. This sectionshould be approved.



### 20.11.49.11 DOCUMENTS: Documents incorporated

and citedin 20.11.49

NMAC maybe viewed at theAlbuquerque

environmental

health department,

400 Marquette

NW, Room3023, Albuouerque.

NM 87102.This section makesdocuments relevantto this particular rule available to the public, and serves for dissemination

of information. This section should be approved.



### 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. This section is a part of the templateusedfor Chapter 11 Air Quality. Its purposeis to clarify that compliarìce

with the rule doesnot relieve a person from its obligationsto comply with other applicablefederal, state, and local laws and regulations. This sectionshould be approved.

20.II.49.I3 APPLICABILITY: A. Any source: (1) whose operationresults in an emission of a regulated air pollutant, including a fugitive emission,in excess of the quantity, rate, opacity or concentration specifred

by anair quality regulation or permit condition; or

(2) subject

to the requirements

of 20.11.47

NMAC, Emissions

Inventory Requirements,20.11.4l NMAC, Authority-To-Construct,20.11.42 NMAC, Operating

Permits, 20.11.61NMAC, Prevention of Significant

Deterioration,

or 20.11.60

NMAC, PermittingIn Nonattainment

Areas. B. Deviations under 20.Il. }NMAC, Operating Permits, which do not result in

excess emissions,

are not subject

to the provisions

of 20.11.49

NMAC. C. 20.II.49 NMAC doesnot create a separate

cause of action for failure to obtain a permit under20.11.4LNMAC,Authority-To-Construct,20.ll.42NMAC, Operating Permits, 20.11.61NMAC, Prevention of Significant

Deterioration,

or 20.11.60

NMAC, PermittingIn Nonattainment

Areas. This sectionstates

what sources

are subjectto this rule, and defines the scopeand extent of the affected sources.

This sectionshould be approved.

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 emissionis a violation of the air qualrty regulation or permit condition and may be subject to an enforcement

action. The owner
or operatorof a sourcehaving an excess emission shall, to the extent practicable, operate the source, including associated

air pollution control equipment,in a mannerconsistent with good air pollution control 

### ices for minimizine

emissions. This sectionclearly states that emission or opacity above a limit in a rule, air permit, or permit condition is a violation. This statement is consistent

with EPA's long standingposition on
excess emissions

and EPA's 1999Policy on excess emissions.

This section

should be approved.



### 20.II.49.I5 NOTIFICATION: A. The owner or operator of a source

having an excess

emission shall report thefollowing information to the department on forms provided by the department. The department may authorize the submiual of such reports in electronic format. The department may require that the owner or operatorof 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 deadlinespecified by the department.

(1) Initial report: The owner or operatorshall 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 regardingeachitem required by Subsection B of 20.11.49.15

NMAC. (2) Final report: No later than 10 days after the end of the excess emission,

the

orwner or operatorshall file a final report that containsspecific and detailed information for each item required

by Subsection

B of 20.11.49.15

NMAC. B. The report shall include the following information: (1) the name

of the source; (2) the name of the owner and operatorof the source; (3) the name and title of the personpreparingthe report; (4) identiffing information (e.g. permit and database numbers); (5) the specific date(s) and time(s) the excess

emissionoccurred; (6) identification of the equipment involved and the emissionpoint(s) (including bypass) from which the excess emissionoccurred; (7) the air quality regulation or permit condition that was exceeded; (8) identification of the air contaminant(s) and the magnitudeof the excess emissionexpressed

in the units of the air quality regulation or permit condition; (9) the method for determiningthe magnitudeand duration of the excess emission; (10) the cause and nature of the excess emission; (11) the steps

takento limit the duration and magnitudeof the excess emission; (12) the corrective action(s)taken to eliminate the cause of the excess

emission; if

one or more conective actionsare required, the report shall include a schedule for implementationof those actions, with associated

progress reports; if no corrective actionsare required,

the report shall include a detailed explanation for that conclusion. (13) the corrective action(s)taken to prevent a recuffence of the excess

emission; (14) whetherthe owner or operatorattributes the excess

emissionto malfunction, startup or shutdown;

(15) whetherthe owner or operator will claim an affirmative defense under Subsections

A, B or C of 20.II.49.16 NMAC; if claimingan affirmative defense, an analysis

and the supportingevidence for eachreason

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 deadlinefor submiuing the final report, if the department

receives a request

for an extension

from the owner or operatorof the source, the department

may grant an extension to complete

the analysisnot to exceed 30 additional days; and (16) the contents of the final report shall contain a signedcertification of truth, accuracy,

and completeness;

the certification shall be signedby 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 of 20.II.49.I5 NMAC to the department within T2hours of the date and time the excess emission ceased. D. Alternative reporting. If an owner or operatorof a sourceis subject to both the
excess emission

reporting

requirements

of 20.1 | .49.15 NMAC andthe reporting requirements

of 40 CFR Parts 60, 67, and 63, and the federal reporting requirements duplicatethe requirements of 20.IL49.l5 NMAC. thenthe federal ins requirements shall suffice. This sectionestablishes the reporting, notification, recordkeeping, and corresponding

time framesthat an owner or operatorof a facility will needto follow when his/her facility experiences

excess emissions. This sectionshould assist AEHD with proper management and minimizing the excess-emissions-related activities. This section should be approved.

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 applicablepermit or other authoization of the air board. 20.11.49 NMAC provides an affirmative defense to owners and operators

for civil or administrativepenalty actions brought for excess emissions

during periods of startup,shutdownmalfunction or emergency, unlessotherwiseprohibited by Subsection D of 20.1I.49.16

NMAC. 20.II.49.15 NMAC shall not be construed as limiting EPA's or citizens' authority under the act. The department may require the owner or operatorof a source to provide supplemental

information in addition to that akeadyrequired by 20.II.49.16 NMAC. The additional information shall be reportedby the deadline specifiedby the department.

A. AffTrmative defense for an excess

emission during malfunctionz The owner or operator of a source

subject to 20.11.49

NMAC may claim an affirmative defense for an excess emissionduring malfunction, against a civil penalty imposed in an administrativeor judicial enforcement

action. There shall be no affirmative defense for an excess

emissionduring malfunction, from the owner or operator's liability or the department's claim for injunctive relief for the excess

emission. The owner or operatorclaiming an affirmative defense for an excess emission during malfunction, shall bearthe 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 beenforeseen and avoided,or planned for; and (b) could not have been avoided by better operationand maintenance practices; (3) to the maximum extent practicable the air pollution control equipmentor processes

were maintained

and operated

in a manner consistent

with good practice for rninimizing emissions;

(4) repairs

were made in an expeditious fashionwhen the operatorknew or should have known that applicableemission limitations were being exceeded; off-shift labor and overtime must have been utilized, to the extent practicable, to ensure

that such repairswere made
as expeditiously as practicable;(5) the amount and duration of the excess emission (including any bypass) were minimized to the maximum extent practicableduring 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 operationif at all possible; (S) the owner or operator's actions in response

to the excess

emission

were documented

by properly signed,contemporaneous operatinglogs, 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 operatorcomplied with the notification requirements in 

### 20.t1.49.rs

NMAC. Use of an affirmative defense approach

for malfunction activities is permissibleunder the 1999 Policy. The elements

described

in this sectionare similar, if not identical, to thoseof the 1999 Policy. See

section II, page3 of the attachment to the 1999 Policy. The owner or operator claiming an affrrmative defense for an excess

emission during malfi.mction hasthe burden of proof that the elements listed aboveare met. This approach is consistent

with the 1999 Policy. This section

states "20.11.49.15

NMAC shall not be construed as limiting EPA's or citizens' authority under the act" This statement is consistent

with the federal and citizen enforcement provisions

of the Act (42 U.S.C. $$ 7413 and7604). This section states "The department

may require the owner or operator of ø source to provide supplemental inþrmation in addition to that alreadyrequiredby 20.11.49.16 NMAC" This statement, reserving

the right to request additional information from a source, should enhance

enforcement

authority of the AEHD concerningexcess

emissions. This sectionshould be approved.

20.11.49.16

B. Affirmative defense for an excess

emission during størtup or shutdown: The
owner or operator

of a sourcesubjectto20.I1.49 NMAC may claim an affirmative defense for
an excess

emissionduring startupor shutdownagainsta civil penalty imposed in an administrativeor judicial enforcement action. There shall be no afftrmative defense for an
excess emissionduring startupor shutdown,from the owner or operator's liability or the department's

claim for injunctive relief for the excess emission. The owner or operatorclaiming
an affirmative defense

for an excess

emission during startupor shutdownshall bearthe burden of proof including the demonstration of the following criteria: (1) the excess

emissionoccurredduring a startupor shutdown; (2) the periods of excess emissions

that occuned during startupor shutdownwere short and infrequentand 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 control equipment),

then the bypass

was unavoidable

to prevent loss of life, personalinjury, or
severe property damage; (5) at all times, the source was operated

in a manner consistent

with good practices

for minimizing emissions; (6) the frequency and duration of operation in startupor shutdownmode was minimized to the maximum extent practicable;



### l 0(7) all possiblesteps were taken to minimize the impact of the excess emrssron

on ambient air quality;

(8) all emissions

monitoring systems

were kept in operationif at all possible; (9) the owner or operator's actionsduring the period of excess emissions

were doçumented

by properly signed,contemporaneous operating logs, or other relevant evidence; and (10) the owner or operatorcomplied with the notification requirements in 20.11.49.t5

NMAC. Use of an affirmative defense approach

for startupor shut down activities is permissibleunder the 1999 Policy. The elements described

in this sectionare similar, if not identical, to thoseof 1999Policy. See

section III, pages

4-6 of the attachment

o the 1999Policy. The owner or operatorclaiming an affrrmative defense for an excess

emission during startupor shutdown activities has the burden of proof that the elements listed above are met, This approach is consistent

with the 1999 Policy. This section states "The department møy require the owner or operator of a source to provide supplemental information in addition to that already required by 20.11.49.16

NMAC" This statement should enhance enforcement

authority

of the AEHD concerningexcess

emissions. This sectionshould be approved.

This sectionnarowly defines and describes the scope

of an "emergency" situation, requires the
owner to follow the applicable reporting and notification procedures, explicitly states

that in any enforcement

proceedings

the burden of proof is upon the source, and per 20.11.49.t6 AEHD
reserves the right to request

additional information from a source. This sectionshould assist with enforcement

of the rule. This sectionshould be approved.

20.11.49.16D. Affirmative defensesprohibited. The affirmative defense provisions of this section shall not be available for:



### 1) claims

for iniunctive

relief;

1 l 20.11.49.16

C. Affirmative defense for an emergenq). (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
sourcedemonstrates

through properly signed,contemporaneous operating logs, or other relevant evidence

that: (a) an emergency occurredand that the owner or operatorcan 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 20.1I.49.15

NMAC, includinga description of the emergency,

any steps

taken to mitigate emissions,

and correctiveactionstaken. (2) In any enforcement proceeding,

the owner or operatorseeking to establish

the
occurrence

of an emergency

hasthe burden of proof.(2) SIP limits or permit limits that have been settaking into account potential emissions

during startupand shutdown,including, but not limited to, limits that indicatethey apply during startupand 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 promulgatedemission limits, including, but not limited to, 40 CFR Parts60,6I and 63; or

(5) violations of requirements that derive from 40 CFR Parts 60,61and 63 or any other federallv enforceable perforTnance

standard or emission limit. This sectionclearly states when assertion

of affirmative defense

for excess

emissions

shall not be allowed. Addition of section D will complement

he provision in 20.11.49.16 (A), (B), and (C). This section is consistent with the 1999 Policy on excess emissions

that afftrmative defense is not applicableto Federally-promulgated standards

such as NSPS and NESHAP. This section should assist

with enforcement

of the rule. This section should be approved.

This sectionallows the AEHD to request additional/relevant

information for enforcement actions. Clearly states

that assertion

of affirmative defense

doesnot constitutea waiver of liability for the owner or operator. This section is consistent with the federal and citizen enforcement

provisions

of the Act (42 U.S.C. $$ 7413 and7604). This section should assist with enforcement

of the rule. This sectionshould be approved. 20.11.49.16F,. Department's determination of adequacy of affÏrmative defense. The department

may issuea determination regardiîgan owner or operator's assertion

of the affirmativedefense

underSubsections

A, B or C of 20.ll .49

.16 NMAC on the basis of any relevant information, including but not limited to information submittedpursuant to 20.11.49 NMAC or obtained

through an inspection. Any such determinationis not a final action and is not reviewable,shall not be a prerequisite to the coÍrmencementof an administrative or judicial enforcement

action, does

not constitute

a waiver of liability pursuant to 20.11.49.18

NMAC, and shall not preclude

an enforcement

action by the federal government or a citízenpursuant

to the federal Clean Air Act. A source may not assert

an affrmative defense under Subsections

A, B or C of 20.11.49.16

NMAC in an administrative or judicial enforcement action unlessit asserted such defense to Paragraph (15) of Subsection

B of 20.11.49.15

NMAC.

20.II.49.I7 ROOT CAUSE AND CORRECTIVE ACTION AI\ALYSIS: 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 analysisshall contain the following information: (1) an analysisdescribing the root cause

and all contributing causes of the excess emission;

and (2) an analysisof the corrective actions implemented or availableto reduce

the likelihood of a recurrence of the excess

emissionresulting from the causes identified under Paragraph

(1) of Subsection

A of 20.11.49.17

NMAC, including,asapplicable: (a) identification of implementedor available corrective action altematives, such as changes

in design,operationand maintenance; b) the estimated

cost associated

with eachcorrective action alternati



### T2(c) the probableeffectiveness of eachcorrective action altemative; (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 actionsare identified, a schedule for implementationand progress reports. B. The department shall make the demand for an analysisno later than 90 days after receipt of the final report required by Subsection

A of 20.11

.49 .I5 NMAC. C. The department may require the analysisauthorizedby Subsection A of 20-Il-49.17 NMAC after considering relevant factors. Examples

of relevant

factors include the significanceof the excess emission,

the natureor pattern of excess emissions,

andthe history of the source,

aswell as any other factors determined to be relevant by the department. D. The completedanalysisshall be submitted to the department

no later than 60 days after the department's

demandis receivedby the owner or operatorof the source, pursuant to Subsection

A of 20.11.49.I7

NMAC. For goodcause shown, the department

may gtant an extension

to submit the analysis. E. The owner or operator of a source

complyingwith 20.11.49.17 NMAC may assert
a claim for confidential information protection. EPA approved2}.2.7 NMAC - ExcessEmissions rule that was published on September 14,2009 at 74 FR 46910. AEHD-adopted root cause and corrective action analysis section is similar, if not identical, to those we approved

for NMED a.t74FR 46910. In support of including root cause

and corrective action analysisprovision of the excess emissions

rule for NMED, EPA in its April 30, 2008 comment letter to NMED wrote: "... a root cause analysis provisionwill hove thefollowing added benefits: a) the root causeanalysiswill seme as aframeworkfor the decision-making

process associated

with the reviøu of excess emissions

reports; b) NMED field personnel will know what information to ask or lookfor, and the owner or operator will know what informøtion he/sheis expected to møke qvailable when qsserting an ffirmative defense to a specific excess

emissions

scenario; c) the NMED can
more fficiently tailor its resources to larger or more

frequent excess

emissions

releases for betterprotection of air quality; d) høving sector or location-specific action plans in place for certain pollutants (e.g., plans devised

to minimize releases

of ozone precursors often associated with the oil and gas operøtions in the Four Corners area) could assist

the areøfrom slipping into nonøttainmentfor ozone, particularly with the recent Federal adoption of a
more stringent ozone

standard; and e) implementing such measures

should bring in consistenqtand transparency to the review process associatedwith excess emissions

reports." AEHD-adopted section20.ll.49.l7 should assist in reducing frequent excess emissions

events. This sectionshould be approved.

20.11.49.18 FUTURE ENFORCEMENT ACTION: The department may commence

an administrativeor judicial enforcement action against

the owner or operatorof a source for an
excess emissionfor which the department has made a determinationpursuant to Subsection

E of 20.11.49.16

NMAC if the department determines

that the excess

emission is relatedto a pattern of excess

emissionevents,

poor maintenance,

careless or marginal operation,or other appropriate
reason. This sectionprovides for transparency in application of the rule, assists with the enforcement

of the rule. This sectionshould be approved.

Conclusion: Based

on above

evaluation,

the 20.1 1.49NMAC - Excess

Emissions

as submitted

to EPA on the September 23,2009 submittal should be approvedas part of the New Mexico SIP for Albuquerque-BernalilloCounty.



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## Chapter

C

20.1L65 NMAC - Volatile Organic Compounds was approvedby EPA December 30, 2004 (69 FR 78312),

and became

effectiveFebruary

28,2005. In this SIP revision AEHD is amending Part 65 by correctingthe crossreferences concerningstartupand shutdownof a facility (see

20.11.65.7(A)),

and updating

the issuing

agency's

telephone

number(see 20.11.65.1).

These amendments

areeditorialand administrative in nature.

The revised

20.I1.65 NMAC - Volatile Organic Compounds is being submitted as revisions to the New Mexico SIP for Albuquerque-Bernalillo County, and should be approved.



### I4

### Chapter D

20.II.69 NMAC- Pathological

Waste Destructors

is an"Albuqueryue-Bernalillo County-only" rule, and is not currently in the EPA-approved New Mexico SIP for the Albuquerque-Bernalillo County area.

The amendments

to Part 69 in this particular SIP revision are editorial in nature (for example;

changing

the telephone

number of the issuing

agency in 20.11.69(A),

and changing

the term"20.11.90

NMAC" to "20.11.49

NMAC" in section

69.25).

The AEHD has specifically askedus not to include 20.1L69 NMAC - Pathological 'Waste Destructors

in their SIP. Therefore this Part should remain as an "Albuquerque-Bernalillo County-only" rule, and no further evaluation is warrantedhere.



### 1 5

### Chapter E

20.Il.}}NMAC- Administration, Enforcement, and Inspection

was approvedby EPA December 30,2004 (69 FR 78312) and became

effectiveFebruary

28,2005. The AEHD is amending Part 90 by:
1) Changing

the title from"20.11.90 NMAC- Administration, Enforcement,

and Inspection" to "20.I1.90 NMAC- SourceSurveillance, Administration and Enforcement";
2) Correcting

the issuing

agency's

telephone

number(see

20.1 1.90.1);
3) Changing

the term "this part" to "20.11.90"(for example; see sections 90.2,90.3, 90.10, and 90.1 1);
4) Changing

the term *20.II NMAC" to "codified under Title2}, Environmental protection, chapter I I Albuquerque-Bernalillo County Air quality Control Board, of the New Mexico Administrative Code" (for example;

see section 90.14(A) and (B)). Theseamendments

are editorial and administrative in nature. Therefore, thesç amendments

should be approved;
5) Removing section20.11.90.12 Breakdown,Abnormal Operating Conditions, or scheduled

Maintenance

in its entirety. As explained in Chapter A of this document, the current excess-emissions-related provisions, titled Breakdown,Abnormal Operatingconditions, or Scheduled Maintenance,

do not conform with EPA's guidance

documents

and excess

emissionsPolicy. Therefore, this removal should be approved.

The revised

20.11.90

NMAC - Source

Surveillance,

Administration

and Enforcement

is being submittedas a revision to the New Mexico SIP for Albuquerque-Bernalillo County, and should be approved.



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