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SECTION 12 - AFFIRMATIVE DEFENSES TO DISCHARGE VIOLATIONS <br /> 12.1 Upset <br /> A. For the purposes of this section, "upset" means an exceptional incident in which <br /> there is unintentional and temporary non-compliance with applicable pretreatment <br /> standards because of factors beyond the reasonable control of the user. An upset <br /> does not include non-compliance 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 non- <br /> compliance 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, contemporaneous operating logs, or other relevant <br /> 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 non- <br /> compliance; <br /> (b) The period of non-compliance, including exact dates and times or, <br /> if not corrected, the anticipated time the non-compliance is <br /> expected to continue; and <br /> (c) Steps being taken and/or planned to reduce, eliminate, and prevent <br /> recurrence of the non-compliance. <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. Users will have the opportunity for a judicial determination on any claim of upset <br /> only in an enforcement action brought for non-compliance with applicable <br /> pretreatment standards. <br /> F. Users shall control production of all discharges to the extent necessary to maintain <br /> compliance with applicable pretreatment standards upon reduction, loss, or failure <br /> of its treatment facility until the facility is restored or an alternative method of <br /> treatment is provided. This requirement applies in the situation where, among <br /> other things, the primary source of power of the treatment facility is reduced, lost, <br /> or fails. <br /> 47 <br />