CFR / Title 40 / Part 63 / Sec. 63.552 Affirmative defense to civil penalties for exceedance of

In response to an action to enforce the standards set forth in this subpart, you may assert an affirmative defense to a claim for civil penalties for exceedances of such standards that are caused by malfunction, as defined at Sec. 63.2. Appropriate penalties may be assessed, however, if you fail to meet your burden of proving all of the requirements in the affirmative defense. The affirmative defense shall not be available for claims for injunctive relief.

(a) Affirmative defense. To establish the affirmative defense in any action to enforce such a limit, you must timely meet the notification requirements in paragraph (b) of this section, and must prove by a preponderance of evidence that:

(1) The excess emissions:

(i) Were caused by a sudden, infrequent, and unavoidable failure of air pollution control and monitoring equipment, process equipment, or a process to operate in a normal or usual manner.

(ii) Could not have been prevented through careful planning, proper design or better operation and maintenance practices.

(iii) Did not stem from any activity or event that could have been foreseen and avoided, or planned for.

(iv) Were not part of a recurring pattern indicative of inadequate design, operation, or maintenance.

(2) Repairs were made as expeditiously as possible when the applicable emissions limitations were being exceeded. Off-shift and overtime labor were used, to the extent practicable to make these repairs.

(3) The frequency, amount and duration of the excess emissions (including any bypass) were minimized to the maximum extent practicable during periods of such emissions.

(4) If the excess emissions resulted from a bypass of control equipment or a process, then the bypass was unavoidable to prevent loss of life, personal injury, or severe property damage.

(5) All possible steps were taken to minimize the impact of the excess emissions on ambient air quality, the environment and human health.

(6) All emissions monitoring and control systems were kept in operation if at all possible, consistent with safety and good air pollution control practices.

(7) All of the actions in response to the excess emissions were documented by properly signed, contemporaneous operating logs.

(8) At all times, the affected source was operated in a manner consistent with good practices for minimizing emissions.

(9) A written root cause analysis has been prepared, the purpose of which is to determine, correct, and eliminate the primary causes of the malfunction and the excess emissions resulting from the malfunction event at issue. The analysis shall also specify, using best monitoring methods and engineering judgment, the amount of excess emissions that were the result of the malfunction.

(b) Notification. The owner or operator of the affected source experiencing an exceedance of its emissions limit(s) during a malfunction, shall notify the Administrator by telephone or facsimile transmission as soon as possible, but no later than two business days after the initial occurrence of the malfunction, it wishes to avail itself of an affirmative defense to civil penalties for that malfunction. The owner or operator seeking to assert an affirmative defense, shall also submit a written report to the Administrator within 45 days of the initial occurrence of the exceedance of the standard in this subpart to demonstrate, with all necessary supporting documentation, that it has met the requirements set forth in paragraph (a) of this section. The owner or operator may seek an extension of this deadline for up to 30 additional days by submitting a written request to the Administrator before the expiration of the 45-day period. Until a request for an extension has been approved by the Administrator, the owner or operator is subject to the requirement to submit such report within 45 days of the initial occurrence of the exceedance.

Sec. Table 1 to Subpart X of Part 63--General Provisions Applicability

to Subpart X ----------------------------------------------------------------------------------------------------------------

Reference Applies to subpart X Comment----------------------------------------------------------------------------------------------------------------63.1................................... Yes.63.2................................... Yes.63.3................................... Yes.63.4................................... Yes.63.5................................... Yes.63.6(a), (b), (c)...................... Yes.63.6(d)................................ No.......................................... Section reserved.63.6(e)(1)(i).......................... No.......................................... See 63.543(k) for general

duty requirement.63.6(e)(1)(ii)......................... No.63.6(e)(1)(iii)........................ Yes.63.6(e)(2)............................. No.......................................... Section reserved.63.6(e)(3)............................. No.63.6(f)(1)............................. No.63.6(g)................................ Yes.63.6(h)................................ No.......................................... No opacity limits in

rule.63.6(i)................................ Yes.63.6(j)................................ Yes.63.7(a)-(d)............................ Yes.63.7(e)(1)............................. No.......................................... See 63.543(j).63.7(e)(2)-(e)(4)...................... Yes.63.7(f), (g), (h)...................... Yes.63.8(a)-(b)............................ Yes.63.8(c)(1)(i).......................... No.......................................... See 63.543(k) for general

duty requirement.63.8(c)(1)(ii)......................... Yes.63.8(c)(1)(iii)........................ No..........................................63.8(c)(2)-(d)(2)...................... Yes.63.8(d)(3)............................. Yes, except for last sentence.63.8(e)-(g)............................ Yes.63.9(a), (b), (c), (e), (g), Yes.

(h)(1)through (3), (h)(5) and (6), (i)

(1)through (3), (h)(5) and (6), (i)

and (j).63.9(f)................................ No.63.9(h)(4)............................. No.......................................... Reserved.63.10 (a).............................. Yes.63.10 (b)(1)........................... Yes.63.10(b)(2)(i)......................... No.63.10(b)(2)(ii)........................ No.......................................... See 63.550 for

recordkeeping of

occurrence and duration

of malfunctions and

recordkeeping of actions

taken during

malfunction.63.10(b)(2)(iii)....................... Yes.63.10(b)(2)(iv)-(b)(2)(v).............. No.63.10(b)(2)(vi)-(b)(2)(xiv)............ Yes.63.(10)(b)(3).......................... Yes.63.10(c)(1)-(9)........................ Yes.63.10(c)(10)-(11)...................... No.......................................... See 63.550 for

recordkeeping of

malfunctions.63.10(c)(12)-(c)(14)................... Yes.63.10(c)(15)........................... No.63.10(d)(1)-(4)........................ Yes.63.10(d)(5)............................ No.......................................... See 63.550(e)(11) for

reporting of

malfunctions.63.10(e)-(f)........................... Yes.63.11.................................. No.......................................... Flares will not be used

to comply with the

emission limits.63.12 to 63.15......................... Yes. .........................----------------------------------------------------------------------------------------------------------------

Sec. Table 2 to Subpart X of Part 63--Emissions Limits for Secondary

Lead Smelting Furnaces ------------------------------------------------------------------------

You must meet the following emissions

limits . . . \a\

---------------------------------------

Total hydrocarbon Dioxin and furanFor vents from these processes . ppm by volume (dioxins and

. . expressed as furans) nanograms/

propane corrected dscm expressed as

to 4 percent TEQ corrected to 7

carbon dioxide percent O2------------------------------------------------------------------------Collocated blast and 20 ppmv........... 0.50 ng/dscm.

reverberatory furnaces (new and

existing).Collocated blast and 360 ppmv.......... 170 ng/dscm.

reverberatory furnaces when the

reverberatory furnace is not

operating for units that

comments construction or

reconstruction before June 9,

1994.Collocated blast and 70 ppmv........... 170 ng/dscm.

reverberatory furnaces when the

reverberatory furnace is not

operating for units that

commence construction or

reconstruction after June 9,

1994.Blast furnaces that commence 360 ppmv.......... 170 ng/dscm.