§ 28-248. Affirmative defenses to discharge violations; upset.

(a)

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.

(b)

An upset shall constitute an affirmative defense to an action brought for noncompliance with pretreatment standards if the requirements of subsection (c), below, are met.

(c)

An industrial user who wishes to establish the affirmative defense of an 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.

(3)

The user has verbally submitted the following information to the director within twenty-four (24) hours of becoming aware of the upset, with a written submission to be provided within five (5) days.

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, the anticipated time the noncompliance is expected to continue.

c.

Steps being taken or planned to reduce, eliminate and prevent recurrence of the noncompliance.

(d)

In any enforcement proceeding, the user seeking to establish the occurrence of an upset shall have the burden of proof.

(e)

The industrial user shall control production or all discharges to the extent necessary to maintain compliance with pretreatment standards upon reduction, loss, or failure of its treatment facility until the facility is restored or an alternative method or 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.

(Ord. No. C-98-61, § 3, 10-20-98)