(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 or customer. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventative maintenance or careless or improper operation.
(B) An upset shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards if the requirements of division (C) of this section are met.
(C) A user or customer that wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other evidence that:
(1) An upset occurred and the user or customer can identify the cause(s) of the upset;
(2) The facility was at the time being operated in a prudent and workman-like manner and in compliance with applicable operation and maintenance procedures; and
(3) The user or customer has submitted the following information to the town as soon as possible but no later than 24 hours of becoming aware of the upset. If this information is provided orally, a written submission must be provided within five days:
(a) A description of the indirect discharge and cause of noncompliance;
(b) The period of noncompliance, including the exact date and times or, if not corrected, the anticipated time the noncompliance 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 user or customer seeking to establish the occurrence of an upset shall have the burden of proof.
(E) Users and customers 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.
(F) Users and customers 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. 99-04, passed 2-16-99)