(A) Upset.
(1) An upset shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards if the requirements of division (A)(2) below are met.
(2) A 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 user can identify the cause of the upset;
(b) The facility was, at the time, being operated in a prudent and workmanlike manner and in compliance with applicable operation and maintenance procedures; and
(c) The user has submitted the following information to the POTW Director within 24 hours of becoming aware of the upset; if this information is provided orally, a written submission must be provided within five days:
1. A description of the indirect discharge and cause of noncompliance;
2. The period of noncompliance, including exact dates and times or, if not corrected, the anticipated time the noncompliance is expected to continue; and
3. Steps being taken and/or planned to reduce, eliminate, and prevent recurrence of the noncompliance.
(3) In any enforcement proceeding, the user seeking to establish the occurrence of an upset shall have the burden of proof.
(4) Users will have the opportunity for a judicial determination on any claim of upset only in an enforcement action brought for noncompliance with categorical pretreatment standards.
(5) 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.
(Prior Code, § 28-356)
(B) Prohibited discharge standards defense.
(1) A user shall have an affirmative defense to an enforcement action brought against it for noncompliance with the general prohibitions in § 52.004(A) or the specific prohibitions in § 52.004(B)(2), (B)(3), (B)(5) through (B)(7), and (B)(9) through (B)(23) 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 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 user’s prior discharge when the town was regularly in compliance with its NPDES permit and, in the case of interference, was in compliance with applicable sludge use or disposal requirements.
(2) Pursuant to 40 C.F.R. § 403.5(a)(2), the affirmative defense outlined in this section cannot apply to the specific prohibitions in § 52.004(B)(1), (B)(4), and (B)(8).
(Prior Code, § 28-357)
(Ord. 11-00, passed 9-7-2000)