A. For the purpose of this section, "upset" means an exceptional incident in which there is unintentional and temporary noncompliance with categorical pretreatment standards because of factors beyond the reasonable control of the user. An upset does not include noncompliance 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 be an affirmative defense to an enforcement action brought for noncompliance with categorical pretreatment standards and requirement if the following conditions are met:
C. A user who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence that:
1. The user can identify the cause of the upset;
2. The facility was operating in a prudent and workman-like manner at the time of the upset and was in compliance with applicable O&M procedures; and
3. The user submits the following information to the city within 24 hours of becoming aware of the upset, If this report is given orally, the user must also submit a written report containing such information within 5 days:
a. A description of the discharge and its causes of noncompliance;
b. The period of noncompliance including exact dates and time or, if not corrected, the anticipated time the noncompliance is expected to continue;
c. Steps being taken and/or planned to reduce, eliminate and prevent recurrence of the noncompliance.
4. In any enforcement proceeding, the user seeking to establish the occurrence of an upset shall have burden of proof.
5. Users will have the opportunity for judicial determination on any claim of upset only in an enforcement action for noncompliance with categorical pretreatment standards.
6. User shall control production of 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.
(Ord. 1413 § 13.2, passed 4-1-2015)