On June 5, 2007, the Air Pollution Control Division (“APCD”) revised its Valid Upset Determination Policy (“Upset Policy”) and related Malfunction Event Reporting Form to conform to recent changes to the “Upset” provisions found in the State of Colorado’s Common Provisions Regulations. The “Upset” provisions describe the process by which a source must identify an upset or malfunction and the effect of identifying an upset or malfunction.

On December 15, 2006, the Air Quality Control Commission (“AQCC”) made several changes to the “Upset” provisions, including: 1) changing the term “upset” to “malfunction” to maintain consistency with EPA policy; 2) defining an “upset” as “any sudden and unavoidable failure of air pollution control equipment or process equipment or unintended failure of a process to operate in a normal or usual manner;” 3) qualifying that all upsets are not violations; 4) clarifying that an affirmative defense (but not an exemption from violation of the Clean Air Act) is available to defend against claims/enforcement actions for civil penalties in cases where excess emissions arise from upset conditions; and 5) adding ten specific factors that a source must prove by a preponderance of the evidence to obtain the above-described affirmative defense.

Revisions to the Upset Policy, in addition to the above, include: 1) three criteria to the existing factors used by the APCD to evaluate whether a source may claim an affirmative defense to enforcement for excess emissions arising from an upset; 2) the extension of the mandatory reporting period for an upset event to noon on the next working day; 3) the elimination of the presumption that total non-compliance time less than five percent of operating time typically does not justify an enforcement action; 4) a provision for upset reporting by e-mail; and 5) elimination of a provision for initial upset reporting to local agencies rather than the APCD.