SECTION 252:100-9-8. Mitigation

(a)   General. All periods of excess emissions regardless of cause are violations of the Act and rules promulgated thereunder, the Oklahoma Clean Air Act and rules promulgated thereunder, and applicable permit or other authorization of the DEQ.

(b)   Mitigating factors for excess emissions during malfunctions. To establish that an incident of excess emissions resulted from malfunction and request to be relieved of an administrative penalty in any action initiated by the Department to enforce an applicable requirement, the owner or operator of the facility must meet the requirements of OAC 252:100-9-7 and establish by a preponderance of the evidence:

(1)   The excess emissions were caused by a sudden and not reasonably preventable breakdown of air pollution control equipment or process equipment, or the failure of a process to operate in the normal or usual manner.

(2)   The excess emissions did not stem from any activity or event that could have been planned for or reasonably foreseen and avoided.

(3)   Repairs were made as expeditiously as possible.

(4)   The amount and duration of the excess emissions, including any bypass, were minimized to the extent practicable during periods of such emissions.

(5)   Reasonable steps were taken to minimize the impact of the excess emissions on ambient air quality.

(6)   The reason(s) any monitoring systems were not kept in operation, if applicable.

(7)   The owner or operator's actions during the period of excess emissions were documented by contemporaneous operating logs or other relevant evidence.

(8)   The excess emissions were not part of a recurring pattern indicative of inadequate design, operation or maintenance.

(9)   To the maximum extent practicable, the air pollution control equipment or process equipment was maintained and operated in a manner consistent with good practice for minimizing emissions; provided, however, that this provision shall not be construed to automatically require the shutdown of process equipment to minimize emissions.

(c)   Alternative emission limits, and mitigating factors for excess emissions during startup and shutdown. Emissions in compliance with a federally enforceable alternative emission limit or means of compliance developed for inclusion in the facility's permit for periods of startup and shutdown shall not be considered excess emissions. Under applicable permitting provisions of this chapter, any such alternative provision may not establish an emission limitation less stringent than an applicable emission limitation in the EPA-approved state implementation plan. To request relief from an administrative penalty in any action initiated by the Department to enforce an applicable requirement during periods of startup and shutdown, the owner or operator of the facility must meet the requirements of OAC 252:100-9-7 and establish by a preponderance of the evidence:

(1)   The periods of excess emissions that occurred during startup and shutdown were short and infrequent and could not have been prevented through reasonable planning and design.

(2)   The excess emissions were not part of a recurring pattern indicative of inadequate operation or maintenance.

(3)   If the excess emissions were caused by a bypass, the bypass was unavoidable to prevent loss of life, personal injury or severe property damage.

(4)   The frequency and duration of operation in startup and shutdown periods were minimized to the extent practicable.

(5)   Reasonable steps were taken to minimize the impact of excess emissions on ambient air quality.

(6)   The reason(s) any monitoring systems were not kept in operation, if applicable.

(7)   The owner or operator's actions during the period of excess emissions were documented by contemporaneous operating logs or other relevant evidence.

(8)   The facility was operated in a manner consistent with good practice for minimizing emissions; provided, however, that this provision shall not be construed to require the use or installation of additional or redundant pollution control equipment not otherwise required and that this provision shall not be construed to automatically require the shutdown of process equipment to minimize emissions.

(d)   Prohibited relief. Any relief allowed under the provisions of this section shall not be available for:

(1)   Claims for injunctive relief.

(2)   SIP limits or permit limits that have been set taking into account potential emissions during startup and shutdown, including, but not limited to, limits that indicate they apply during startup and shutdown, and limits that explicitly indicate they apply at all times or without exception.

(3)   Excess emissions that cause an exceedance of the NAAQS or PSD increments.

(4)   Failure to meet federally promulgated emission limits, including, but not limited to, 40 CFR Parts 60, 61 and 63.

(5)   Violations of requirements that derive from 40 CFR Parts 60, 61 and 63.

(e)   Mitigation determination. In making any determination whether to grant administrative penalty relief to a source under this section, the Director shall consider the information within the notification required in OAC 252:100-9-7 and any other information the Director deems necessary and relevant, which may include, but is not limited to, physical inspection of the facility and review of documentation pertaining to the maintenance and operation of emission units and air pollution control equipment. This section shall not be construed to preclude EPA or federal court jurisdiction under Section 113 of the Act to assess civil penalties or other forms of relief for periods of excess emissions, to prevent EPA or the courts from considering the statutory factors for the assessment of civil penalties under Section 113, or to interfere with the rights of litigants to pursue enforcement consistent with their rights under the citizen suit provision of Section 304 of the Act.

[Source: Added at 26 Ok Reg 1895, eff 7-1-09; Amended at 33 Ok Reg 1458, eff 9-15-16]