§63.456. Affirmative defense for violation of emission standards during malfunction.
40 C.F.R. § 63.456
In response to an action to enforce the standards set forth in §§ 63.443(c) and (d), 63.444(b) and (c), 63.445(b) and (c), 63.446(c), (d), and (e), 63.447(b) or § 63.450(d), the owner or operator may assert an affirmative defense to a claim for civil penalties for violations of such standards that are caused by malfunction, as defined at 40 CFR 63.2. Appropriate penalties may be assessed, however, if the owner or operator fails to meet the burden of proving all of the requirements in the affirmative defense. The affirmative defense shall not be available for claims for injunctive relief.
To establish the affirmative defense in any action to enforce such a standard, the owner or operator must timely meet the reporting requirements in paragraph (b) of this section, and must prove by a preponderance of evidence that:
The violation—
Was caused by a sudden, infrequent, and unavoidable failure of air pollution control equipment, process equipment, or a process to operate in a normal or usual manner, and
Could not have been prevented through careful planning, proper design or better operation and maintenance practices; and
Did not stem from any activity or event that could have been foreseen and avoided, or planned for; and
Was not part of a recurring pattern indicative of inadequate design, operation, or maintenance; and
Repairs were made as expeditiously as possible when a violation occurred. Off-shift and overtime labor were used, to the extent practicable to make these repairs; and
The frequency, amount and duration of the violation (including any bypass) were minimized to the maximum extent practicable; and
If the violation 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; and
All possible steps were taken to minimize the impact of the violation on ambient air quality, the environment and human health; and
All emissions monitoring and control systems were kept in operation if at all possible, consistent with safety and good air pollution control practices; and
All of the actions in response to the violation were documented by properly signed, contemporaneous operating logs; and
At all times, the affected source was operated in a manner consistent with good practices for minimizing emissions; and
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 violation resulting from the malfunction event at issue. The analysis shall also specify, using best monitoring methods and engineering judgment, the amount of any emissions that were the result of the malfunction.
Report. The owner or operator seeking to assert an affirmative defense shall submit a written report to the Administrator with all necessary supporting documentation, that it has met the requirements set forth in paragraph (a) of this section. This affirmative defense report shall be included in the first periodic compliance, deviation report or excess emission report otherwise required after the initial occurrence of the violation of the relevant standard (which may be the end of any applicable averaging period). If such compliance, deviation report or excess emission report is due less than 45 days after the initial occurrence of the violation, the affirmative defense report may be included in the second compliance, deviation report or excess emission report due after the initial occurrence of the violation of the relevant standard.
Notes, amendments, and revision history
Amendments
[77 FR 55712, Sept. 11, 2012]
Source
Source: 63 FR 18617, Apr. 15, 1998, unless otherwise noted.
Authority
Authority: 42 U.S.C. 7401 et seq.
Source
Source: 57 FR 61992, Dec. 29, 1992, unless otherwise noted.
Amendments
[77 FR 55712, Sept. 11, 2012]