1. (a) Any pollution, or any discharge of waste without a permit or in violation of a permit, shall not constitute a violation under this chapter if the pollution or discharge is the result of causes which are outside the control of the permittee or the permittee's agents and could not be avoided by the exercise of due care. Such acts include, but are not limited to, an act of God, war, strike, riot, or other catastrophe.
2. (b) The owner or operator of the affected facility shall have the burden of proof to demonstrate that any pollution or discharge is not a violation as provided by subsection (a) of this section.
3. (c) If force majeure is claimed as an affirmative defense to an action brought under this chapter, the permittee must submit notice to the executive director as provided by §305.125(9) of this title (relating to Standard Permit Conditions).
4. (d) The executive director shall respond in writing within 30 days from receipt of the notification provided under subsection (c) of this section with a determination as to whether the event constitutes a force majeure and an affirmative defense to an enforcement action.

Source Note:The provisions of this §70.7 adopted to be effective June 6, 1996, 21 TexReg 4753.