Section 326IAC2-8-12. Emergency provision

   (a) An emergency as defined in 326 IAC 2-7-1(12) is not an affirmative defense for an action brought for noncompliance with a federal or state health-based emission limitation, except as otherwise provided in this section.

  (b) An emergency as defined in 326 IAC 2-7-1(12) constitutes an affirmative defense to an action brought for noncompliance with a health-based or technology-based emission limitation if the affirmative defense of an emergency is demonstrated through properly signed, contemporaneous operating logs or other relevant evidence that describe the following:

(1) An emergency occurred and the permittee can, to the extent possible, identify the causes of the emergency.

(2) The permitted facility was at the time being properly operated.

(3) During the period of an emergency, the permittee took all reasonable steps to minimize levels of emissions that exceeded the emission standards or other requirements in a FESOP.

(4) For an emergency lasting one (1) hour or more, the permittee notified the commissioner within four (4) daytime business hours after:

(A) the beginning of the emergency; or

(B) the emergency is discovered or reasonably should have been discovered.

(5) The permittee submitted notice either in writing or by facsimile of the emergency under subdivision (4) to the commissioner within two (2) working days of the time when emission limitations were exceeded due to the emergency. This notice fulfills the requirement of section 4(3)(C)(ii) of this rule and must contain the following:

(A) A description of the emergency.

(B) Any steps taken to mitigate emissions.

(C) Corrective actions taken.

(6) The permittee immediately took all reasonable steps to correct the emergency.

  (c) In any enforcement proceeding, the permittee seeking to establish the occurrence of an emergency has the burden of proof.

  (d) This emergency provision supersedes 326 IAC 1-6 for sources subject to this rule after the effective date of this rule. This provision is in addition to any emergency or upset provision contained in any applicable requirement.

  (e) The commissioner may require that the preventive maintenance plan required under section 3(c)(6) of this rule be revised in response to an emergency.

  (f) Failure to notify the commissioner by telephone or facsimile of an emergency lasting more than one (1) hour in compliance with subsection (b)(4) and (b)(5) shall constitute a violation of this rule and any other applicable rules.

  (g) Operations may continue during an emergency if the following conditions are met:

(1) If the emergency situation causes a deviation from a technology-based limit, the source may continue to operate the affected emitting facilities during the emergency provided the source immediately takes all reasonable steps to correct the emergency and minimize emissions.

(2) If an emergency situation causes a deviation from a health-based limit, the source may not continue to operate the affected emissions facilities unless:

(A) the source immediately takes all reasonable steps to correct the emergency situation and to minimize emissions; and

(B) continued operation of the facilities is necessary to prevent imminent injury to persons, severe damage to equipment, substantial loss of capital investment, or loss of product or raw material of substantial economic value.

Any operations shall continue no longer than the minimum time required to prevent the situations identified in clause (B).

(Air Pollution Control Division; 326 IAC 2-8-12; filed May 25, 1994, 11:00 a.m.: 17 IR 2277; errata filed May 25, 1994, 11:10 a.m.: 17 IR 2358; filed Apr 22, 1997, 2:00 p.m.: 20 IR 2360; errata filed Jul 23, 2007, 4:19 p.m.: 20070815-IR-326070466ACA)