§ 25-100.7. Affirmative defenses to discharge violations.

(a)

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 25-100.7(a)(3) 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:

a.

An upset occurred and the user can identify the cause(s) of the upset; and

b.

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

(4)

The user has submitted the following information to the superintendent within twenty-four (24) hours of becoming aware of the upset:

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; and

c.

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

If this information is provided orally, a written submission must be provided within five (5) days

(5)

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

(6)

Users shall have the opportunity for a judicial determination on any claim of upset only in an enforcement action brought for noncompliance with categorical pretreatment standards.

(7)

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.

(b)

Prohibited discharge standards. A user shall have an affirmative defense to an enforcement action brought against it for noncompliance with the general prohibitions in section 25-71 or the specific prohibitions in subsections 25-71(a) through (s) 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:

(1)

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

(2)

No local limit exists, but the discharge did not change substantially in nature or constituents from the user's prior discharge when the city was regularly in compliance with its NPDES permit, and in the case of interference, was in compliance with applicable sludge use or disposal requirements.

(3)

The affirmative defenses outlined under prohibited discharges do not apply to the specific prohibitions in subsections 25-71(a) (pollutants which create fire or explosive hazards), (c) (pH), and (n) (trucked or hauled pollutants except at discharge points designated by superintendent).

(Ord. No. 12-1700-936, § 1, 10-2-12)

(Ord. No. 12-1700-936, § 1, 10-2-12)