[Ord. No. 1840, 12-15-2025]
A.
For the purposes of these Regulations, an upset means an exceptional incident in which there is unintentional and temporary non-compliance with these Regulations because of factors beyond the reasonable control of the 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.
B.
An upset shall constitute an affirmative defense to an action brought for non-compliance with these Regulations if the requirements of Article VIII, Section 710.760(C) are met.
C.
Any 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 information to the Control Authority as required in Article V, Section 710.590(A) and (C).
D.
In any enforcement proceeding the User seeking to establish the occurrence of an upset shall have the burden of proof.
E.
The User shall control production of all discharges to the extent necessary to maintain compliance with these 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, is lost or fails.