(A) If a person can establish that an event, which would otherwise be a violation of this chapter, an industrial user wastewater discharge permit issued pursuant to this chapter, or other Federal, state, or local law, was caused solely by an act of God, war, strike, riot, or other catastrophe, the event is not a violation.
(B) Conditions necessary for a demonstration of affirmative defense. An industrial user who wishes to establish an affirmative defense shall demonstrate, through properly signed, contemporaneous operation logs, or other relevant evidence that:
(1) The event that resulted in a violation occurred and the industrial user can identify the cause(s) of the violation as being solely an act of God, war, strike, riot, or other catastrophe;
(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 environmental officer within 24 hours of becoming aware of the violation (if this information is provided orally a written submission must be provided within five days);
(a) A description of the event that resulted in a violation and the 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;
(c) Steps being taken and/or plans to reduce, eliminate and prevent recurrence of the noncompliance. Any verbal notice must include all of the information set out in (a) through (c) above.
(C) Burden of proof. In any enforcement proceeding the industrial user seeking to establish an affirmative defense shall have the burden of proof.
(D) Reviewability of agency consideration. In the exercise of prosecutorial discretion, the environmental officer will review any claims of an affirmative defense. No determinations made in the course of his/her review shall constitute final action subject to judicial review. Industrial users will have the opportunity for a judicial determination on any claim of an affirmative defense only in an enforcement action brought for noncompliance with categorical pretreatment standards.
(E) User responsibility. The industrial user shall control production or all discharges to the extent necessary to maintain compliance with categorical 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.
(Ord. 160726-A, passed 7-26-2016)