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A. For the purposes of this Section, the word “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 pretreatment facilities, inadequate pretreatment facilities, lack of preventive maintenance, or careless or improper operation.

B. An upset shall constitute an affirmative defense to punitive actions in response to noncompliance with Categorical Pretreatment Standards (Section 14.10.060), but not local limits (Section 14.10.080), when the requirements of Section 14.10.680(C) are met.

C. 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 was in compliance with applicable operation and maintenance procedures.

3. Where the upset involved reduction, loss, or failure of its treatment facility (e.g. a power failure), the User controlled production of all discharges to the extent necessary to maintain compliance with Categorical Pretreatment Standards until the facility was restored or an alternative method of treatment was provided.

4. The User submitted the following information to the Director within twenty-four (24) hours of becoming aware of the upset. When initially provided orally, the User must have provided a written report within five (5) days that includes:

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.

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

E. 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. (Ord. M-3970 §2, 2010)