Technical Support Document

NEW MEXICO TITLE 20 ENVIRONMENTAL PROTECTION, CHAPTER 11

ALBUQUERQUE-BERNALILLO COUNTY AIR QUALITY CONTROL BOARD, PART 49

EXCESS EMISSIONS

(20.1L49 NMAC - Excess Emissions)

November 6.2009
Introduction

This Technical Support Document (TSD) concerns our evaluation of revisions to the

Albuquerque-Bemalillo County New Mexico State Implementation Plan (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 SIP was

submitted with a September 23,2009 letter from the Govemor's Offrce to EPA. This letter was

received in EPA Region 6 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 EPAapproved provision of the SIP concerning excess emissions titled Breakdown, Abnormal

Operating Conditions, or Scheduled Maintenance. Chapter B presents the proposed 20.II.49

NMAC - Excess Emissions, and our section-by-section evaluation of the proposal. Chapter C

presents the proposed20.I1.65 NMAC - Volatile Organic Compounds. Chapter D presents the

proposed 20.11.69 NMAC - Pathological Waste Destructors (a "state-only" rule). Chapter E

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 Operating Conditions, or

Scheduled Maintenance, and was approved into the New Mexico SIP for Albuquerque-Bernalillo

County on04ll0ll980 (42 FR 24468) at 40 CFR 52.1620 (cXl1). See Chapter A of this TSD.

With this submittal AEHD is repealing its existing EPA-approved provisions of the New

Mexico SIP concerning excess emissions titled Breakdown, Abnormal Operating Conditions, or

Scheduled Maintenance which was approved into the New Mexico SIP for AlbuquerqueBernalillo County on04ll0l1980 (42 FR 24468) presented in Table A 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 - Pathological Waste Destructors to correct the Part 49-related cross-references, but is

only submitting the revised 20.11.65 NMAC as a revision to the New Mexico SIP for

Albuquerque-Bernalillo County. See Chapters C and D of this document for details.

The AEHD is also amending 20.fi.I}NMAC- Source Surveillance, 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. See Chapter E of this document.

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Chapter A

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 approved into the New Mexico SIP on 0411011980 (42 FR 24468) at 40

CFR 52.1620 (cXl1).

This section states that emissions of air contaminants in excess of limits are not

violations. This includes excess emissions due to scheduled maintenance activities. Such a

statement does not conform with EPA guidance documents and national policy on excess

emissions. Therefore, repeal of 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 devices or apparatus so as to cause emissions of air

contaminants in excess of limits set by these air 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 equipment or air pollution

control devices or apparatus for scheduled maintenance, is not a violation ofthese air pollution control regulations,

provided:

A. As to scheduled maintenance, the occurrence is reported in advance to the Director during his working hours, and

that such work is performed during periods of non-operation and when the Air Pollution Potential Index is under 50.

B. As to breakdown of equipment or abnormal operating conditions, the occurrence has been reported to the Director

as soon as practicable, but no later than two (2) hows after occurence, except that when the Director's office is closed,

such report shall be made within two (2) hours after said office reopens for regular business.

C. Repairs are made with maximum, reasonable eflort, including use of off-shift labor, overtime or work periods of

non-operation.

D. The emission of air contaminants is minimized as much as reasonably possible during breakdown of equipment,

abnormal operating conditions or scheduled maintenance.

E. In the event of emission of air contaminants of a nature or in quantities which would endanger public health or

safety, such emission is stopped entirely or reduced to harmless levels as soon as possible.

F. Breakdown of equipment or abnormal operating conditions do not occur with such frequency that careless,

inal. unsafe or deliberate abnormal operation 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 Part 49 (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, signed by Govemor Bill Richardson, dated September

23,2009. The AEHD is requesting that the Part 49 (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 Quality Control

Board, c/o Environmental Health Department. P.O. Box 1293, Albuquerque, New Mexico

87103. T 50s) 768-2601.

This section sets fonh the authority of the agency responsible for issuing the rule. This section

should be approved.

20.11.49.2 SCOPE:

A. 20.11.49 NMAC is applicable to every stationary source within Bernalillo county.

B. Exempt: 20.IL49 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 iurisdictron.

This section establishes the geographic area affected by the rule. This section should be

approved.

20.11.49.3 STATUTORY AUTHORITY: 20.11.49 NMAC is adopted pursuant to the

authority provided in the New Mexico Air Quality Control Act, NMSA 1978 SectionsT4-2-4,

74-2-5; the Joint Air Quality Control Board Ordinance, Bemalillo 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-l-4 and 9-5-l-5.

This section designates the agency responsible for issuing the rule. This section should be

approved.

20.11.49.4 DURATION: Permanent.

This section states that the rule is not temporary in nature. This section should be approved.

20.11.49.5 EFFECTIVE DATEz 10113109. unless alater date is cited at the end of a

section.
This section provides for the effective date of the rule for state purposes. This rule will become a

part of the federally enforceable New Mexico SIP upon final approval. This section should 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 intended objective and purposes of the rule. This section should be

approved.

20.11.49.7 DEFINITIONS: In addition to the definitions in20.11.49 NMAC, 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

combination thereof, the operation of 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, 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" me¿ms 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 pollutantemitting activities which belong to the same industrial 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) 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 ([J.S. government printing offrce stock

numbers 4 I 0 1 -0065 and 003 -00 5 -00 17 6-0, respectively).

E. "Emergency" 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 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 specif,red by an air quality

ion or permit condition.
G. "Malfunction" means any 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. [Reservedl

L "Regular business day" means any day on which city of Albuquerque

govemment 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. ttstationary source" or ttsourcet'means any building, structure, facility, or

installation which emits or may emit a regulated air pollutant.

This section properly defines specific terms relevant to the rules governing excess emissions;

these definitions should clarify application of the rule and prevent potential confusion. This

section should 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 state records center shall not affect actions pending for violation ofa city or county

ordinance, or 20.11.49 NMAC. Prosecution for a violation under prior regulation wording shall

be governed and prosecuted under the statute, ordinance, part, or regulation section in effect at

the time the violation was committed.

This section is a part of the template used for Chapter 11 Air Quality. Its purpose is to clarify the

application of provisions not held invalid. This section should be approved.

20.11.49.10 SEVERABILITY: If for any reason any section, subsection, sentence, phrase,

clause, wording or application of 20.1 1.49 NMAC is held to be unconstitutional orotherwise

invalid by any court or the United States environmental protection agency, the decision shall not

affect the validitv or application of remainine portions of 20.11.49 NMAC

This section is a part of the template used for Chapter 11 Air Quality. Its purpose is to clarify the

application of the rule . This section should be approved.

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,

Albuouerque. NM 87102.
This section makes documents relevant to 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 template used for Chapter 11 Air Quality. Its purpose is to clarify

that compliarìce with the rule does not relieve a person from its obligations to comply with other

applicable federal, state, and local laws and regulations. This section should be approved.

20.II.49.I3 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 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, Permitting In

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 does not create a separate cause of action for failure to obtain a

permit under 20.11.4LNMAC, Authority-To-Construct,20.ll.42NMAC, Operating Permits,

20.11.61NMAC, Prevention of Significant Deterioration, or 20.11.60 NMAC, Permitting In

Nonattainment Areas.

This section states what sources are subject to this rule, and defines the scope and extent of the

affected sources. This section should 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 emission is a violation of the air

qualrty 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 ices for minimizine emissions.

This section clearly 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 standing position on

excess emissions and EPA's 1999 Policy 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 the
following 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 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.

(1) 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

of 20.11.49.15 NMAC.

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

orwner 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:

(1) 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) identiffing information (e.g. permit and 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 conective 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.

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

(14) whether the owner or operator attributes the excess emission to malfunction,

startup or shutdown;

(15) whether the owner or operator will claim an affirmative defense under

Subsections A, B or C of 20.II.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 submiuing 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 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 operator of a source is subject to both the

excess emission reporting requirements of 20.1 | .49.15 NMAC and the reporting requirements of

40 CFR Parts 60, 67, and 63, and the federal reporting requirements duplicate the requirements

of 20.IL49.l5 NMAC. then the federal ins requirements shall suffice.

This section establishes the reporting, notification, recordkeeping, and corresponding time

frames that an owner or operator of a facility will need to follow when his/her facility

experiences excess emissions. This section should 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 applicable permit or other

authoization of the air board. 20.11.49 NMAC provides an affirmative defense to owners and

operators for civil or administrative penalty actions brought for excess emissions during periods

of startup, shutdown malfunction or emergency, unless otherwise prohibited 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 operator of a source to provide

supplemental information in addition to that akeady required by 20.II.49.16 NMAC. The

additional information shall be reported by the deadline specified by 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

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

rninimizing 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;

(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 pattern indicative of

inadequate design, operation, or maintenance; and

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

20.t1.49.rs NMAC.

Use of an affirmative defense approach for malfunction activities is permissible under the 1999

Policy. The elements described in this section are similar, if not identical, to those of the 1999

Policy. See section II, page 3 of the attachment to the 1999 Policy. The owner or operator

claiming an affrrmative defense for an excess emission during malfi.mction has the burden of

proof that the elements listed above are 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 already required by 20.11.49.16 NMAC" This statement, reserving the right to request

additional information from a source, should enhance enforcement authority of the AEHD

concerning excess emissions. This section should be approved.

20.11.49.16 B. Affirmative defense for an excess emission during størtup or shutdown: The

owner or operator of a source subject to20.I1.49 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 afftrmative 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 occuned during startup 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

control equipment), then the bypass was unavoidable to prevent loss of life, personal injury, 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 startup or shutdown mode was

minimized to the maximum extent practicable;

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(7) all possible steps were taken to minimize the impact of the excess emrssron 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

doçumented 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.t5 NMAC.

Use of an affirmative defense approach for startup or shut down activities is permissible under

the 1999 Policy. The elements described in this section are similar, if not identical, to those of

1999 Policy. See section III, pages 4-6 of the attachmento the 1999 Policy. The owner or

operator claiming an affrrmative defense for an excess emission during startup or 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

concerning excess emissions. This section should be approved.

This section narowly 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 section should assist with

enforcement of the rule. This section should 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;

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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

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 20.1I.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.
(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 of the NAAQS or PSD increments;

(4) failure to meet federally promulgated emission limits, including, but not

limited to, 40 CFR Parts 60,6I 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 section clearly states when assertion of affirmative defense for excess emissions shall not be

allowed. Addition of section D will complementhe 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 applicable to Federally-promulgated standards such as NSPS and NESHAP. This section

should assist with enforcement of the rule. This section should be approved.

This section allows the AEHD to request additional/relevant information for enforcement

actions. Clearly states that assertion of affirmative defense does not constitute a 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 section should be approved.

20.11.49.16F,. Department's determination of adequacy of affÏrmative defense. The

department may issue a determination regardiîgan owner or operator's assertion of the

affirmative defense under Subsections A, B or C of 20. ll .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 coÍrmencement of 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 unless it 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 analysis shall contain the following information:

(1) 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 or available corrective action altematives,

such as changes in design, operation and maintenance;

b) the estimated cost associated with each corrective action alternati

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(c) the probable effectiveness of each corrective 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 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 of 20.11 .49 .I5 NMAC.

C. The department may require the analysis authorized by Subsection A of

20-Il-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 of

the 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 of 20.11.49.I7 NMAC. For good cause shown, the department may gtant 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.

EPA approved2}.2.7 NMAC - Excess Emissions 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.t74 FR 46910. In support of

including root cause and corrective action analysis provision 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 cause analysis will 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/she is 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 better protection 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 consistenqt and transparency to

the review process associatedwith excess emissions reports." AEHD-adopted section20.ll.49.l7 should

assist in reducing frequent excess emissions events. This section should be approved.

20.11.49.18 FUTURE ENFORCEMENT ACTION: The department 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

20.11.49.16 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.

This section provides for transparency in application of the rule, assists with the enforcement of

the rule. This section should be approved.

Conclusion: Based on above evaluation, the 20.1 1.49 NMAC - Excess Emissions as

submitted to EPA on the September 23,2009 submittal should be approved as part of the New

Mexico SIP for Albuquerque-Bernalillo County.

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Chapter C

20.1L65 NMAC - Volatile Organic Compounds was approved by EPA December 30,

2004 (69 FR 78312), and became effective February 28,2005. In this SIP revision AEHD is

amending Part 65 by correcting the cross references concerning startup and shutdown of a

facility (see 20.11.65.7(A)), and updating the issuing agency's telephone number (see

20.11.65.1). These amendments are editorial and 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.

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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 asked us 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 warranted here.

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Chapter E

20.Il.}}NMAC- Administration, Enforcement, and Inspection was approved by EPA December

30,2004 (69 FR 78312) and became effective February 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- Source Surveillance, 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)).

These amendments are editorial and administrative in nature. Therefore, thesç

amendments should be approved;

5) Removing section 20.11.90.12 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

Operating conditions, or Scheduled Maintenance, do not conform with EPA's

guidance documents and excess emissions Policy. Therefore, this removal should be

approved.

The revised 20.11.90 NMAC - Source Surveillance, Administration and Enforcement is

being submitted as a revision to the New Mexico SIP for Albuquerque-Bernalillo County, and

should be approved.

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