A. For the purposes of this section "upset" means an exceptional incident in which there is unintentional and temporary noncompliance with applicable pretreatment standards because of factors beyond the reasonable control of the user. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.
B. An upset shall constitute an affirmative defense to an action brought for noncompliance with applicable pretreatment standards if the requirements of subsection C of this section are met.
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;
2. The facility was at the time being operated in a prudent and workmanlike manner and in compliance with applicable operation and maintenance procedures; and
3. The user has submitted the following information to the POTW and treatment plant operator within twenty four (24) hours of becoming aware of the upset if this information is provided orally, a written submission must be provided within five (5) 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.
D. In any enforcement proceeding, the user seeking to establish the occurrence of an upset shall have the burden of proof.
E. Users will have the opportunity for a judicial determination on any claim of upset only in an enforcement action brought for noncompliance with applicable pretreatment standards.
F. Upon reduction of efficiency of operation, or loss or failure of all or part of the treatment facility, the industrial user must, to the extent necessary to maintain compliance with this chapter and its wastewater discharge permit, control its production or discharges (or both) until operation of the treatment facility is restored or an alternative method of treatment is provided. Such a requirement applies, for example, when the primary source of power of the treatment facility fails or is reduced. It will not be a defense for an industrial user in an enforcement action to argue it was not feasible to halt or reduce the activity to maintain compliance with its wastewater permit. (Ord. 3032, 2019: Ord. 2837 § 1, 2008)