Section 63.820 - Applicability(a) The provisions of this subpart apply to: (1) Each new and existing facility that is a major source of hazardous air pollutants (HAP), as defined in 40 CFR 63.2 , at which publication rotogravure, product and packaging rotogravure, or wide-web flexographic printing presses are operated, and(2) Each new and existing facility at which publication rotogravure, product and packaging rotogravure, or wide-web flexographic printing presses are operated for which the owner or operator chooses to commit to and meets the criteria of paragraphs (a)(2)(i) and (ii) of this section for purposes of establishing the facility to be an area source of HAP with respect to this subpart. A facility which establishes area source status through some other mechanism, as described in paragraph (a)(7) of this section, is not subject to the provisions of this subpart. (i) Use less than 9.1 Mg (10 tons) per each rolling 12-month period of each HAP at the facility, including materials used for source categories or purposes other than printing and publishing, and(ii) Use less than 22.7 Mg (25 tons) per each rolling 12-month period of any combination of HAP at the facility, including materials used for source categories or purposes other than printing and publishing.(3) Each facility for which the owner or operator chooses to commit to and meets the criteria stated in paragraph (a)(2) of this section shall be considered an area source, and is subject only to the provisions of §§ 63.829(d) and 63.830(b)(1) of this subpart.(4) Each facility for which the owner or operator commits to the conditions in paragraph (a)(2) of this section may exclude material used in routine janitorial or facility grounds maintenance, personal uses by employees or other persons, the use of products for the purpose of maintaining electric, propane, gasoline and diesel powered motor vehicles operated by the facility, and the use of HAP contained in intake water (used for processing or noncontact cooling) or intake air (used either as compressed air or for combustion).(5) Each facility for which the owner or operator commits to the conditions in paragraph (a)(2) of this section to become an area source, but subsequently exceeds either of the thresholds in paragraph (a)(2) of this section for any rolling 12-month period (without first obtaining and complying with other limits that keep its potential to emit HAP below major source levels), shall be considered in violation of its commitment for that 12-month period and shall be considered a major source of HAP beginning the first month after the end of the 12-month period in which either of the HAP-use thresholds was exceeded. As a major source of HAP, each such facility would be subject to the provisions of this subpart as noted in paragraph (a)(1) of this section and would no longer be eligible to use the provisions of paragraph (a)(2) of this section, even if in subsequent 12-month periods the facility uses less HAP than the thresholds in paragraph (a)(2) of this section.(6) An owner or operator of an affected source subject to paragraph (a)(2) of this section who chooses to no longer be subject to paragraph (a)(2) of this section shall notify the Administrator of such change. If, by no longer being subject to paragraph (a)(2) of this section, the facility at which the affected source is located becomes a major source:(i) The owner or operator of an existing source must continue to comply with the HAP usage provisions of paragraph (a)(2) of this section until the source is in compliance with all relevant requirements for existing affected sources under this subpart;(ii) The owner or operator of a new source must continue to comply with the HAP usage provisions of paragraph (a)(2) of this section until the source is in compliance with all relevant requirements for new affected sources under this subpart.(7) Nothing in this paragraph is intended to preclude a facility from establishing area source status by limiting its potential to emit through other appropriate mechanisms that may be available through the permitting authority.(b) This subpart does not apply to research or laboratory equipment.(c) In response to an action to enforce the standards set forth in this subpart, an owner or operator 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 § 63.2 . Appropriate penalties may be assessed, however, if the owner or operator fails to meet the burden of proving all the requirements in the affirmative defense. The affirmative defense shall not be available for claims for injunctive relief. (1) To establish the affirmative defense in any action to enforce such a limit, the owners or operators of a facility must timely meet the notification requirements of paragraph (c)(2) of this section, and must prove by a preponderance of evidence that: (i) The excess emissions were caused by a sudden, infrequent, and unavoidable failure of air pollution control and monitoring equipment, or a process to operate in a normal or usual manner; and could not have been prevented through careful planning, proper design or better operation and maintenance practices; and did not stem from any activity or event that could have been foreseen and avoided, or planned for; and were not part of a recurring pattern indicative of inadequate design, operation, or maintenance;(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;(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;(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;(v) All possible steps were taken to minimize the impact of the excess emissions on ambient air quality, the environment, and human health;(vi) All emissions monitoring and control systems were kept in operation, if at all possible, consistent with safety and good air pollution control practices;(vii) All of the actions in response to the excess emissions were documented by properly signed, contemporaneous operating logs;(viii) At all times, the facility was operated in a manner consistent with good practices for minimizing emissions; and(ix) The owner or operator has prepared a written root cause analysis, 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 the best monitoring methods and engineering judgment, the amount of excess emissions that were the result of the malfunction.(2)Notification. The owner or operator of the facility experiencing an exceedance of its emission limit(s) during a malfunction shall notify the Administrator by telephone or facsimile (FAX) transmission as soon as possible, but no later than 2 business days after the initial occurrence of the malfunction, if it wishes to avail itself of an affirmative defense to civil penalties for that malfunction. The owner or operator seeking to assert an affirmative defense shall also submit a written report to the Administrator within 45 days of the initial occurrence of the exceedance of the standard in this subpart to demonstrate, with all necessary supporting documentation, that it has met the requirements set forth in paragraph (c)(1) of this section. The owner or operator may seek an extension of this deadline for up to 30 additional days by submitting a written request to the Administrator before the expiration of the 45 day period. Until a request for an extension has been approved by the Administrator, the owner or operator is subject to the requirement to submit such report within 45 days of the initial occurrence of the exceedance.61 FR 27140, May 30, 1996, as amended at 71 FR 29799, May 24, 2006; 76 FR 22597, Apr. 21, 2011