(A) Any discharger experiencing an upset in operations which places the discharger in a temporary state of noncompliance with this chapter, or a discharge permit issued pursuant hereto, shall inform the City Manager immediately upon becoming aware of the upset. The City Manager shall make a determination whether this discharge can continue. Upon the City Manager allowing the discharge to continue, a written follow-up report thereof shall be filed by the discharger with the City Manager within five days. The report shall include:
(1) A description of the upset, the cause thereof and the upset’s impact on a discharger’s compliance status;
(2) The duration of noncompliance, including exact dates and time of noncompliance, and if noncompliance continues, the time by which compliance is reasonably expected to occur; and
(3) All steps taken, or to be taken, to reduce, eliminate and prevent recurrence of such upset or other conditions of noncompliance.
(B) A documented and verified operating upset shall be an affirmative defense to any enforcement action brought by the City Manager against a discharger for any noncompliance with this chapter or any discharge permit issued pursuant hereto, which arises out of violations alleged to have occurred during the period of the upset. It will not, however, be a defense to an action for damages to the POTW or to persons, property or natural resources caused by the upset. An upset will be considered “documented and bona fide” only if the discharger complies with division (A) above and with 40 C.F.R. § 403.16(c) and R 323.2315 of the MAC. In any enforcement proceeding the user seeking to establish the occurrence of an upset shall have the burden of proof.
(C) The user shall have controlled production of all discharges to the extent necessary to maintain compliance with 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.
(D) A user who wishes to establish the affirmative defense of an operating upset shall demonstrate through properly signed, contemporaneous operating logs or other relevant evidence that:
(1) An upset occurred and the user can identify the cause of the upset;
(2) The facility was, at the time, being operated in a prudent and appropriate manner and in compliance with applicable operation and maintenance procedures;
(3) The user notified the City Manager immediately upon becoming aware of the upset; and
(4) A written submission, containing the following information, was provided within five days of commencement of the upset:
(a) A description of the discharge and cause of noncompliance;
(b) The period of noncompliance, including exact dates and times or, if not corrected, the anticipated time the noncompliance was expected to continue; and
(c) Steps taken to reduce, eliminate and prevent recurrence of the noncompliance.
(Ord. effective 11-15-2013)