(a) Any industrial user which experiences an upset in operations or other conditions which place the industrial user in a temporary state of noncompliance with these rules and regulations or a wastewater discharge permit issued pursuant hereto shall inform the Director hereof within twenty-four hours of first awareness of the commencement of the upset. Where such information is given orally, a written follow-up report thereof shall be filed by the industrial user with the Director within five days. The report shall specify:
(1) Description of the upset the cause thereof and the upset's impact on industrial user's compliance status;
(2) Duration of noncompliance, including exact dates and times of noncompliance, and if the noncompliance continues, the time by which compliance is reasonably expected to occur.
(3) All steps taken or to be taken to reduce, eliminate and prevent recurrence of such an upset or other conditions of noncompliance.
(b) A documented and verified bonafide operating upset shall be an affirmative defense to any enforcement action brought by the City against a industrial user for any noncompliance with these rules and regulations or with any wastewater discharge permit issued pursuant hereto which arises out of violations alleged to have occurred during the period of the upset.
(c) A 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 user can identify the cause(s) of the upset; and
(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.
(d) In any enforcement proceeding, the user seeking to establish the occurrence of an upset shall have the burden of proof.
(e) Users shall have the opportunity for a judicial determination on any claim of upset only in an enforcement action brought for noncompliance with categorical Pretreatment Standards.
(f) Users 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 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.
(g) A user shall have an affirmative defense to an enforcement action brought against it for noncompliance with the general prohibitions in Section 915.100(A) of these rules and regulations or the specific prohibitions in Section 915.100(B)(c) through (s) of these regulations if it can prove that it did not know, or have reason to know, that its discharge, alone or in conjunction with discharges from other sources, would cause pass through or interference and that either:
(1) A Local Limit exists for each pollutant discharged and the user was in compliance with each limit directly prior to, and during, the pass through or interference; or
(2) No Local Limit exists, but the discharge did not change substantially in nature or constituents from the user's prior discharge when the City was regularly in compliance with its NPDES permit, and in the case of interference, was in compliance with applicable sludge use or disposal requirements. (Ord. 30-14. Passed 3-3-14.)
PENALTIES, COSTS AND DAMAGES