(a)
An upset shall constitute an affirmative defense to an enforcement action brought for noncompliance with categorical pretreatment standards if the requirements of subsection (b) of this section are met.
(b)
An industrial user who wishes to establish the affirmative defense of an upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant and reliable evidence, that:
(1)
An upset occurred and the industrial user can identify the cause(s) 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;
(3)
The industrial user has submitted the following information to the control authority within 24 hours of becoming aware of the upset; for purposes of this subsection, an industrial user becomes aware when it knows, or reasonably should have known, the facts giving rise to a reporting obligation:
(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 at the time information is submitted under this subsection, the anticipated time the noncompliance is expected to continue, and why;
(C)
The steps taken or planned to reduce, eliminate, and prevent recurrence of the noncompliance. If the upset was caused by a reduction, loss, or failure of the power supply to the treatment facility, an industrial user shall take steps to control production of all wastestreams to the extent necessary until the treatment facility is restored or an alternative method of treatment is provided, or until such wastestreams can be temporarily stored for future treatment, or taken off site for treatment and disposal; and
(D)
If an industrial user provides the information required by this subsection orally within 24 hours, the industrial user shall also provide the same information to the control authority in writing within five days thereafter.
(c)
In any enforcement proceeding, the industrial user seeking to establish the occurrence of an upset shall have the burden of proof.
(Ord. 1685 § 3 (Exh. A), 2022)