['Air Programs']
['Air Quality']
12/12/2024
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(a) Applicability. A person may establish an affirmative defense to a violation that person is liable for under §80.175(b) if that person satisfies all applicable elements of an affirmative defense in this section.
(1) No person that generates a RIN for biogas-derived renewable fuel may establish an affirmative defense under this section.
(2) A person that is a biogas producer may not establish an affirmative defense under this section for a violation that the biogas producer is liable for under §80.175(b)(1) and (2).
(3) A person that is an RNG producer may not establish an affirmative defense under this section for a violation that the RNG producer is liable for under §80.175(b)(1) and (3).
(b) General elements. A person may only establish an affirmative defense under this section if the person meets all the following requirements:
(1) The person, or any of the person's employees or agents, did not cause the violation.
(2) The person did not know or have reason to know that the biogas, treated biogas, RNG, biogas-derived renewable fuel, or RIN was in violation of a prohibition or requirement under this subpart.
(3) The person must have had no financial interest in the company that caused the violation.
(4) If the person self-identified the violation, the person notified EPA within five business days of discovering the violation.
(5) The person must submit a written report to the EPA including all pertinent supporting documentation, demonstrating that the applicable elements of this section were met within 30 days of the person discovering the invalidity.
(c) Biogas producer elements. In addition to the elements specified in paragraph (b) of this section, a biogas producer must also meet all the following requirements to establish an affirmative defense:
(1) The biogas producer conducted or arranged to be conducted a quality assurance program that includes, at a minimum, a periodic sampling, testing, and measurement program adequately designed to ensure their biogas meets the applicable requirements to produce biogas under this part.
(2) The biogas producer had all affected biogas verified by a third-party auditor under an approved QAP under §§80.170 and 80.1469.
(3) The PTDs for the biogas indicate that the biogas was in compliance with the applicable requirements while in the biogas producer's control.
(d) RNG producer elements. In addition to the elements specified in paragraph (b) of this section, an RNG producer must also meet all the following requirements to establish an affirmative defense:
(1) The RNG producer conducted or arranged to be conducted a quality assurance program that includes, at a minimum, a periodic sampling, testing, and measurement program adequately designed to ensure that the biogas used to produce their RNG meets the applicable requirements to produce biogas under this part and that their RNG meets the applicable requirements to produce RNG under this part.
(2) The RNG producer had all affected biogas and RNG verified by a third-party auditor under an approved QAP under §§80.170 and 80.1469.
(3) The PTDs for the biogas used to produce their RNG and for their RNG indicate that the biogas and RNG were in compliance with the applicable requirements while in the RNG producer's control.
[88 FR 44562, July 12, 2023]
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