20.2.7.113

AFFIRMATIVE DEFENSE FOR AN EMERGENCY.

1. A. An "emergency" means any situation arising from sudden and reasonably unforeseeable events beyond the control of the permittee, including acts of God, 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.

2. B. An emergency constitutes an affirmative defense to an action brought for noncompliance with the technology-based emission limitation if the owner or operator of the source demonstrates through properly signed, contemporaneous operating logs, or other relevant evidence that:

   (1) an emergency occurred and that the owner or operator can identify the cause(s) of the emergency;

   (2) the source was at the time being properly operated;

   (3) 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

   (4) the owner or operator fulfilled the notification requirements under Subsection A of 20.2.7.110 NMAC, including a description of the emergency, any steps taken to mitigate emissions, and corrective actions taken.

3. C. In any enforcement proceeding, the owner or operator seeking to establish the occurrence of an emergency has the burden of proof.
4. D. The department may request that the owner or operator of a source provide additional information beyond what is required in this section (20.2.7.113 NMAC). This additional information shall be reported within the time period specified by the department.

[20.2.7.113 NMAC - N, 08/01/08]