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33 <br /> <br />SECTION 9 - AFFIRMATIVE DEFENSES TO DISCHARGE <br />VIOLATIONS <br /> <br />9.1 Upset <br /> <br />A. For the purposes of this section, upset means an exceptional incident in which there <br />is unintentional and temporary noncompliance with applicable pretreatment <br />standards because of factors beyond the reasonable control of the user. An upset <br />does not include noncompliance to the extent caused by operational error, <br />improperly designed treatment facilities, inadequate treatment facilities, lack of <br />preventive maintenance, or careless or improper operation. <br />B. An upset shall constitute an affirmative defense to an action brought for <br />noncompliance with applicable pretreatment standards if the requirements of <br />paragraph (C) are met. <br />C. A user who wishes to establish the affirmative defense of upset shall demonstrate, <br />through properly signed or initialed contemporaneous operating logs, or other <br />relevant evidence that: <br />(1) An upset occurred and the user can identify the cause(s) of the upset; <br />(2) The facility was at the time being operated in a prudent and workman -like <br />manner and in compliance with applicable operation and maintenance <br />procedures; and <br />(3) The user has submitted the following information to the POTW and <br />treatment plant operator within twenty four (24) hours of becoming aware <br />of the upset (if this information is provided orally, a written submission <br />must be provided within five (5) days): <br />(a) A description of the indirect discharge and cause of noncompliance; <br />(b) The period of noncompliance, including exact dates and times or, if <br />not corrected, the anticipated time the noncompliance is expected to <br />continue; and <br />(c) Steps being taken and/or planned to reduce, eliminate, and prevent <br />recurrence of the noncompliance. <br />D. In any enforcement proceeding, the user seeking to establish the occurrence of an <br />upset shall have the burden of proof. <br />E. A User may appeal any enforcement action due to an upset as provided under <br />Section 6.9 of this ordinance.