(a) Upset liability. In the event of an upset, the upset shall be an affirmative defense for the user to an action against that user for fines, imprisonment or civil penalties provided for in this division, but the user shall not have an affirmative defense to an action for compensatory charges and damages based on an upset. In any proceeding, the user seeking to establish the occurrence of an upset shall have the burden of proof by a preponderance of the evidence.
(b) Conditions necessary for a demonstration of upset. A user who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence, that all of the following apply:
(1) An upset occurred and the user can identify the cause(s) of the upset;
(2) At the time of the upset, the facility was being operated in a prudent and workmanlike manner and in compliance with applicable operation and maintenance procedures; and
(3) The user submitted the following information to the City within 24 hours of becoming aware of the upset (if this information was provided orally, a written submission was provided within five days):
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 is expected to continue; and
c. Steps taken or planned to reduce, eliminate and prevent recurrence of the noncompliance.
(c) User responsibility in case of upset. The user shall control production or all discharges to the extent necessary to maintain compliance with CPS and other applicable discharge limits upon reduction, loss, failure or abnormal condition of its process or treatment facility until the process and facility are 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 user’s treatment facility is reduced, lost or fails.
(Ord. 3630, passed 12-13-2004)