§ 51.143  UPSET DEFINED; AFFIRMATIVE DEFENSE.
   (A)   For the purpose of this section, UPSET means an exceptional incident in which there is unintentional and temporary non-compliance with categorical pretreatment standards because of factors beyond the reasonable control of the user. An UPSET does not include non-compliance caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventative maintenance or careless or improper operation.
   (B)   An upset shall constitute an affirmative defense to an action brought for non-compliance with categorical pretreatment standards if the requirements met by division (C) below 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 of the upset;
      (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; or
      (3)   The user has submitted the following information to the Authority Manager within 24 hours of becoming aware of the upset. (If this information is provided orally, a written submission must be provided within five days):
         (a)   A description of the indirect discharge and cause of the non-compliance;
         (b)   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
         (c)   Steps being taken or planned to reduce, eliminate and prevent recurrence of the non-compliance.
   (D)   In any enforcement proceeding, the user seeking to establish the occurrence of an upset shall have the burden of proof.
   (E)   No determination made in the course of the review of the alleged upset shall constitute final agency action subject to judicial review. Users will have the opportunity for a judicial determination on any claim of upset only in enforcement action brought for non-compliance with categorical pretreatment standards.
   (F)   Users shall control production of all discharges subject to categorical pretreatment standards upon reduction, loss or failure of its treatment system. This requirement applies in situations where, among other things, the primary source of power to the treatment facility is reduced, lost or fails.
(Ord. passed 4-24-1995)