(a)

1. (1) For purposes of this subpart, “upset condition” means exceedances of applicable emission limitations lasting thirty (30) or more minutes, in the aggregate, during a twenty-four-hour period, unless otherwise specified in an applicable permit or rule (such as new source performance standards).
2. (2) All upset conditions resulting in a violation of an applicable permit or rule shall be reported to the Division of Environmental Quality.

(b)

1. (1) Any source exceeding an emission limit established by this part or applicable permit shall be deemed in violation of this part or permit and shall be subject to enforcement action.

2. (2) The division may forego enforcement action for federally regulated air pollutant emissions given that the person responsible for the source of the excess emissions does the following:

   1. (A) Demonstrates to the satisfaction of the division that the emissions resulted from:

(i) Equipment malfunction or upset and are not the result of negligence or improper maintenance; or

1. (ii) Physical constraints on the ability of a source to comply with the emission standard, limitation, or rate during startup or shutdown; and

   1. (iii) That all reasonable measures have been taken to immediately minimize or eliminate the excess emissions;
   2. (B) Reports such occurrence or upset or breakdown of equipment to the division by the end of the next business day after the discovery of the occurrence; and
   3. (C) Submits to the division, at its request, a full report of such occurrence, including the identification of and location of the process and control equipment involved in the upset and including a statement of all known causes and the scheduling and nature of the actions to be taken to eliminate future occurrences or to minimize the amount by which said limits are exceeded and to reduce the length of time for which said limits are exceeded.