(A) An upset can be used as an affirmative defense to an action brought for noncompliance with categorical pretreatment standards, provided that the industrial user meets certain conditions.
(B) An industrial user who wishes to establish the affirmative defense of upset must demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence that:
(1) An upset occurred and the industrial user can identify the cause or causes;
(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 county within 24 hours of becoming aware of the upset (if this information is provided orally, a written submission must follow within five days): a description of the indirect discharge and cause of noncompliance; the period of noncompliance, including exact dates and times, or if not corrected, the anticipated time the noncompliance is expected to continue; steps being taken or planned to reduce, eliminate and prevent recurrence of the noncompliance.
(C) In any enforcement proceeding, the industrial user seeking to establish the occurrence of an upset shall have the burden of proof.
(D) Industrial users will have the opportunity for a judicial determination on any claim of upset only in an enforcement action brought for noncompliance with categorical pretreatment standards.
(E) 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.
(2004 Code, § 181-8) (Ord. 57, passed 2-18-1986; Ord. 57-A, passed 10-5-1993)