(A) Effect of an upset. An upset shall constitute an affirmative defense to an action brought for non- compliance with categorical pretreatment standards if the requirements of division (B) below are met.
(B) Conditions necessary for a demonstration of upset. An industrial user who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs or other relevant evidence that:
(1) An upset occurred and the industrial user can identify the causes 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; and
(3) The industrial user has submitted the following to the city within 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 upset and cause of non-compliance;
(b) The period of non-compliance, including exact dates and times or, if not corrected, the anticipated time the non-compliance is expected to continue; and
(c) Steps being taken or planned to reduce, eliminate and prevent recurrence of the non- compliance.
(C) Industrial user has burden of proof. In any enforcement proceeding, the industrial user seeking to establish the occurrence of an upset shall have the burden of proof.
(D) City enforcement personnel to review claims that non-compliance was caused by upset. In the usual exercise of prosecutorial discretion, city enforcement personnel shall review any claims that non- compliance was caused by an upset. Industrial users may have a judicial determination on any claim of upset only in an enforcement action brought alleging non-compliance with categorical pretreatment standards.
(E) Industrial user to control production of discharges until facility restored or alternative method provided. The industrial 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 for any reason whatsoever until the facility is restored or an alternative method of treatment is provided.
(2012 Code, § 88-175)