(A) Upset. An upset shall be an affirmative defense to an enforcement action brought against a user for violating a pretreatment standard and requirement if the following conditions are met:
(1) The user can identify the cause of the upset;
(2) The facility was operating in a prudent and workmanlike manner at the time of the upset and was in compliance with applicable O&M procedures;
(3) The user submits, within 24 hours of becoming aware of the upset, a description of the discharge and its causes, the period of noncompliance (if not corrected, then the time the noncompliance is anticipated to end), and the steps being taken to reduce, eliminate, and prevent recurrence of the noncompliance;
(4) If this report is given orally, the user must also submit a written report containing such information within five days unless waived by the Superintendent; or
(5) UPSET shall mean an exceptional incident in which there is unintentional and temporary noncompliance with categorical pretreatment standards and requirements because of factors beyond the reasonable control of the industrial user. Noncompliance caused by operational error, improperly designed pretreatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation does not constitute an UPSET.
(B) Bypass. The intentional diversion of wastestreams from any portion of an individual user’s treatment facility shall be an affirmative defense to an enforcement action brought against the industrial user if the user can demonstrate that such a bypass was unavoidable to prevent loss of life, personal injury, or severe property damage. In order to be eligible for the affirmative defense, the industrial user must demonstrate that there was no feasible alternative to the bypass and submit notice of the bypass as required by 40 C.F.R. § 403.17.
(Ord. 10, 1998, passed 9-9-1998)