[Code of Federal Regulations]
[Title 40, Volume 15]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR66.33]

[Page 143-144]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 66_ASSESSMENT AND COLLECTION OF NONCOMPLIANCE PENALTIES BY EPA
--Table of Contents
 
         Subpart D_Exemption Requests; Revocation of Exemptions
 
Sec. 66.33  De Minimis exemptions: malfunctions.

    (a) The Administrator may, upon notice and opportunity for a public 
hearing, exempt the owner or operator of a source if he finds with 
respect to a particular instance of noncompliance, that such 
noncompliance was de minimis in nature and duration, and was caused 
solely by a sudden and unavoidable breakdown of process or pollution 
control equipment.
    (b) A petition for an exemption on the ground that the violation was 
de minimis and was caused by a sudden and unavoidable breakdown of 
process or pollution control equipment may only raise issues related to 
entitlement to an exemption and shall contain or be accompanied by 
supporting documentation. Issues relating to entitlement to an exemption 
that are not raised in the petition shall be deemed

[[Page 144]]

waived. In making such finding the Administrator shall consider whether:
    (1) The violation was de minimis in nature and duration within the 
meaning of Sec. 66.32;
    (2) The air pollution control equipment, process equipment, or 
processes, including appropriate back-up systems, were designed, and 
have been maintained and operated in a manner consistent with good 
practice for minimizing emissions;
    (3) Repair of the malfunctioning equipment was undertaken and 
carried out in an expeditious fashion as soon as the owner or operator 
knew or should have known that the malfunction existed or that 
applicable emission limitations were being violated or were likely to be 
violated;
    (4) All practicable steps were taken to minimize the impact of the 
excess emissions (including any bypass) on ambient air quality;
    (5) The excess emissions were not part of a pattern indicative of 
inadequate design, operation, or maintenance;
    (6) Off-shift and overtime labor were utilized where necessary to 
ensure that repairs were made as expeditiously as possible or that 
emissions were minimized to the maximum extent possible; and
    (7) The level of economic savings, if any, accruing to the source 
owner or operator was de minimis.
    (c) Any activity that could have been foreseen, avoided or planned 
for, or any breakdown that could have been avoided by the exercise of 
reasonable diligence shall not constitute grounds for an exemption under 
this section. Such activities include, but are not limited to, sudden 
breakdowns avoidable by better maintenance procedures, phasing in and 
out of process equipment and routine maintenance.
    (d) A hearing on any petition for an exemption based upon the 
unavoidable breakdown of pollution control equipment shall be informal. 
The hearing shall be scheduled upon notice to the public. Reasonable 
opportunity to testify and for submission of questions by the public to 
the petitioner shall be afforded. The decision of the hearing officer 
will be made in writing within a reasonable period of time after the 
close of the hearing.