If you are authorized in accordance with
40 CFR 63.783(c) to use an add-on control system as an alternative means of limiting emissions from coating operations, 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 a malfunction, as defined in
40 CFR 63.2. Appropriate penalties may be assessed, however, if you fail to meet your burden of proving all the requirements in the affirmative defense. The affirmative defense shall not be available in response to claims for injunctive relief.
To establish the affirmative defense in any action to enforce such a limit, you must timely meet the notification requirements in
paragraph (d)(2) of this section, and must prove by a preponderance of evidence that:
(i)
The excess emissions—
(A)
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; and
(B)
Could not have been prevented through careful planning, proper design or better operation and maintenance practices; and
(C)
Did not stem from any activity or event that could have been foreseen and avoided, or planned for; and
(D)
Were not part of a recurring pattern indicative of inadequate design, operation, or maintenance; and
(ii)
Repairs were made as expeditiously as possible when the applicable emission limitations were being exceeded. Off-shift and overtime labor were used, to the extent practicable to make these repairs; and
(iii)
The frequency, amount and duration of the excess emissions (including any bypass) were minimized to the maximum extent practicable during periods of such emissions; and
(iv)
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; and
(v)
All possible steps were taken to minimize the impact of the excess emissions on ambient air quality, the environment and human health; and
(vi)
All emissions monitoring and control systems were kept in operation if at all possible, consistent with safety and good air pollution control practices; and
(vii)
All of the actions in response to the excess emissions were documented by properly signed, contemporaneous operating logs; and
(viii)
At all times, the affected source was operated in a manner consistent with good practices for minimizing emissions; and
(ix)
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.