(A) Definition. 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 die reasonable control of the Industrial 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) Effect of an upset. An upset shall constitute an affirmative defense to an action brought for noncompliance with pretreatment standards if the requirements of division (C) of this section are met.
(C) 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 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;
(3) The industrial user has submitted the following information to the POTW and Control Authority 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 discharge and cause 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) Burden of proof. In any enforcement proceeding the industrial user seeking to establish the occurrence of an upset shall have the burden of proof.
(5) User responsibility in case of upset. The Industrial User shall control production of all discharges to the extent necessary to maintain compliance with Pretreatment Standard 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 a process in the facility is reduced, lost or fails.
(Ord. 4-1999, passed 3-8-99; Am. Ord. 13-2012, passed 8-13-12; Am. Ord. 15-2016, passed 7-11-16)