(a) Affirmative defense. An upset is permitted as an affirmative defense to an action brought against an industrial user for noncompliance with the categorical pretreatment standards if the user:
(1) demonstrates through properly signed contemporaneous operating logs and similar relevant evidence that the cause of the upset has been identified and that the treatment facility was being operated properly and in accordance with all applicable operating and maintenance procedures; and
(2) submits within 24 hours after becoming aware of the upset a description of the indirect discharge and the cause of noncompliance; the period of noncompliance, including exact dates and times; the anticipated time that noncompliance will continue; and the steps being taken or planned to reduce, eliminate, or prevent a recurrence of the noncompliance and, if the information required by this subsection (a)(2) is submitted orally, provides a written report confirming the oral information no later than five days after the upset.
(b) Burden of proof. The burden of proof shall be on the industrial user to show that an upset has occurred.
(c) Industrial users. The industrial user shall control production of all discharges to the extent necessary to maintain compliance with categorical pretreatment standards on reduction, loss, or failure of its treatment facility until the facility is restored or an alternative method of treatment is provided.
(1985 Code, Art. 25, § 25-5-518) (Bill No. 94-92; Bill No. 63-04)