Section 336.1916. Affirmative defense for excess emissions during start-up or shutdown.

(1) The person operating a source with emissions in excess of an applicable emission limitation due to start-up or shutdown may claim an affirmative defense to an enforcement proceeding, excluding a judicial action seeking injunctive relief, if the person has complied with the reporting requirements of R 336.1912 and has demonstrated all of the following:

(a)          The periods of excess emissions that occurred during start-up or shutdown were short and infrequent and could not have been prevented through careful planning and design.

(b)         The excess emissions that occurred during start-up or shutdown were not part of a recurring pattern indicative of inadequate design, operation, or maintenance.

(c)          The excess emissions caused by a bypass (an intentional diversion of control equipment) were unavoidable to prevent loss of life, personal injury, or severe property damage.

(d)         The facility was operated at all times in a manner consistent with good practice for minimizing emissions.

(e)          The frequency and duration of operating in start-up or shutdown mode were minimized to the maximum extent practicable.

(f)          All reasonably possible steps were taken to minimize the impact of the excess emissions on ambient air quality.

(g)         All emission monitoring systems were kept in operation if at all possible.

(h)         The actions during the period of excess emissions were documented by contemporaneous operating logs or other relevant evidence as provided by R 336.1912.

(i)           Excess emissions presenting an imminent threat to human health, safety, or the environment were reported to the department as soon as possible.

(j)           Unless otherwise specified in the facility's permit, other excess emissions were reported as provided in R 336.1912. If requested by the department, a person shall submit a full written report that includes the known causes, the corrective actions taken, and the preventive measures to be taken to minimize or eliminate the chance of recurrence.

(k)         Any information submitted to the department under this subrule shall be properly certified in accordance with the provisions of R 336.1912.

(2)     This affirmative defense does not apply when a single emission unit, or multiple emission units at a stationary source, causes an exceedance of the national ambient air quality standards or any applicable prevention of significant deterioration increment.

(3)       If the proximate cause of the excess emissions which occurred during routine start-up or shutdown periods was due to a malfunction, then, absent any intervening acts or superseding causes, the instances shall be treated as malfunctions in accordance with R 336.1915.

(4)     Nothing in this rule shall be construed to limit the authority of the department to seek injunctive relief or to enforce the provisions of the act and the regulations promulgated under the act.

History: 2002 AACS.