13.12.790 – Affirmative defense - Upset

  1. For the purposes of this section, “upset” means an exceptional incident in which there is unintentional and temporary noncompliance with categorical pretreatment standards because of factors beyond the reasonable control of the User.  An upset does not include noncompliance 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 noncompliance with categorical pretreatment standards if the requirements of paragraph (C), below, are met.
  3. 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(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; and
    3. The User has submitted the following information to the Director of Public Works within twenty-four (24) hours of becoming aware of the upset if this information is provided orally, a written submission shall be provided within five (5) 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.
  4. In any enforcement proceeding, the User seeking to establish the occurrence of an upset shall have the burden of proof.
  5. 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.
  6. 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.