An upset shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards if all of the requirements of § 68-196(A) below, are met. However, in the event of an upset, the user may still be liable for surcharges for exceeding applicable discharge limitations as provided by this article. In any enforcement proceedings, the user seeking to establish the occurrence of an upset shall have the burden of proof.
(A) Conditions necessary to demonstrate upset. A user seeking to establish the affirmative defense of upset must demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence, all of the following:
(1) An upset occurred and the 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;
(3) The user submitted the following information to the POTW, within 24 hours of becoming aware of the upset (if this information is provided orally, a written submission contain the same information must be provided within 5 days of becoming aware of the upset:
(a) A description of the discharge and cause of non-compliance;
(b) The period of noncompliance, including exact dates and times or, if not corrected, the anticipated time the non-compliance is expected to continue; and
(c) The steps being taken and/or planned to reduce, eliminate, and prevent recurrence of the noncompliance.
(B) User responsibility in case of upset. The user shall control production of all discharges to the extent necessary to maintain compliance with categorical pretreatment standards and other applicable limits 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. 2014-01, passed 1-27-2014)