(A) An upset shall constitute an affirmative defense to an action brought for noncompliance with applicable pretreatment standards if the following requirements are met.
(B) 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 specific causes of the upset;
(2) The facility was at the time being operated in a prudent and workmanlike manner and in compliance with applicable operation and maintenance procedures;
(3) The industrial user has submitted the following information to the city and Control Authority immediately upon becoming aware of the upset (if this information is provided orally, a written submission must be provided within 15 days):
(a) A description of the indirect 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 being taken and/or planned to reduce, eliminate, and prevent recurrence of the noncompliance.
(C) Burden of proof. In any enforcement proceeding the industrial user seeking to establish the occurrence of an upset shall have the burden of proof.
(D) User responsibility in case of upset. The industrial user shall control production or all discharges to the extent necessary to maintain compliance with all applicable regulations 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. 1984-35, passed 12-18-84)