Burden on Defendant to Prove Startup, Shutdown or Malfunction Exception

In the case of Anderson v. Farmland Industries, Inc., 70 F. Supp. 2d 1218 (D. Kansas 1999), the District Court decided motions for summary judgment in connection with a citizen suit against Farmland Industries, the operator of the refinery. Farmland had filed excess emissions reports that showed exceedences of sulfur dioxide and opacity regulations. Farmland challenged the standing of a citizens group on several different theories. One of these was that all of the alleged violations had either been corrected or were excess emissions that occurred during periods of startup, shutdown or malfunction. 40 CFR §60.11(c) states that "the opacity standards set forth in this part shall apply at all times except during periods of startup, shutdown, malfunction and as otherwise provided in the applicable standard." The citizens group challenged the contention by Farmland because the emissions did not meet the definition of "malfunction." 40 CFR §60.2 defines malfunction as "any sudden, infrequent, and not reasonably preventable failure of air pollution control equipment, process equipment, or a process to operate in a normal or usual manner. Failures that are caused in part by poor maintenance or careless operation are not malfunctions." The threshold question addressed by the court was which party had the burden to prove a malfunction existed. The court claimed that it had found no other cases addressing this issue. It therefore decided to apply what it called the "general rule" that the "party claiming the benefits of an exception to the prohibition of the statute has the burden of proving it meets the exception." Therefore it decided Farmland had the burden of proving the malfunction exception and determined that it had not met the burden.