(A) For the purposes of this section, UPSET means an exceptional incident in which there is unintentional and temporary non-compliance with categorical pretreatment standards because of factors beyond the reasonable control of the industrial user. An upset does not include non-compliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance or careless or improper operation.
(B) An upset shall constitute an affirmative defense to an action brought for non-compliance with categorical pretreatment standards if the requirements of division (C) below are met.
(C) An industrial user who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs or other relevant evidence that:
(1) An upset occurred and the industrial user can identify the cause(s) of the upset;
(2) The facility was at the time being operated in a prudent and workmanlike manner and in compliance with applicable operation and maintenance procedures; and
(3) The industrial user has submitted the following information to the Director within 24 hours of becoming aware of the upset; if this information is provided verbally, a written submission must be provided within five days:
(a) A description of the indirect discharge and cause of non-compliance;
(b) The period of non-compliance, including exact dates and times or, if not corrected, the anticipated time the non-compliance is expected to continue; and
(c) Steps being taken and/or planned to reduce, eliminate and prevent recurrence of the noncompliance.
(D) In any enforcement proceeding, the industrial user seeking to establish the occurrence of an upset shall have the burden of proof.
(E) Industrial users will have the opportunity for a judicial determination on any claim of upset only in an enforcement action brought for non-compliance with categorical pretreatment standards.
(F) The industrial user shall control production or all discharges to the extent necessary to maintain compliance with categorical pretreatment standards upon reduction, loss or failure of its treatment facility until the facility is restored or an alternative method of treatment is provided. This requirement applies in the situation where, among other things, the primary source of power of the treatment facility is reduced, lost or fails.
(1960 Code, § 38-14-90) (Ord. 5677, passed 12-16-1996; Am. Ord. 8173-2018, passed 2-21-2018)