A. Upset:
1. For the purposes of this section, "upset" means an exceptional incident in which there is unintentional and temporary non-compliance with applicable pretreatment standards because of factors beyond the reasonable control of the industrial user. An upset does not include non-compliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.
2. An upset shall constitute an affirmative defense to an action brought for non-compliance with applicable pretreatment standards if the requirements of paragraph 3. of this Section are met.
3. 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:
a. An upset occurred and the industrial user can identify the cause(s) of the upset;
b. The facility was at the time being operated in a prudent and workman-like manner and in compliance with applicable operation and maintenance procedures;
c. The industrial user controlled production of all discharges to the extent necessary to maintain compliance with applicable pretreatment standards upon reduction, loss, or failure of their treatment facility until the facility was restored or an alternative method of treatment was provided; and
d. The industrial 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):
i. A description of the indirect discharge and cause of non-compliance;
ii. The period of non-compliance, including exact dates and times or, if not corrected, the anticipated time the non-compliance is expected to continue; and
iii. Steps being taken and/or planned to reduce, eliminate, and prevent recurrence of the non-compliance.
4. In any enforcement proceeding, the industrial user seeking to establish the occurrence of an upset shall have the burden of proof.
January 2020
8-4-2-55 8-4-2-56
5. Industrial users will have the opportunity for a judicial determination on any claim of upset only in an enforcement action brought for non-compliance with applicable pretreatment standards.
B. Prohibited Discharge Standards:
An industrial user shall have an affirmative defense to an enforcement action brought against it for non-compliance with the prohibitions in Section 8-4/2-1, A. and B.3. through B.7., 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: (a) a local limit exists for each pollutant discharged and the industrial user was in compliance with each limit directly prior to, and during, the pass through or interference; or (b) no local limit exists, but the discharge did not change substantially in nature or constituents from the industrial user's prior discharge when the City was regularly in compliance with its IPDES permit, and in the case of interference, was in compliance with applicable sludge use or disposal requirements. (Ord. 582, 10-9-2019)