<div class="chunk-title">Sec. 78-71. - Affirmative defenses to discharge violations.</div>
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               1.
               
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               <span class="ital">Upset.</span>
               
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               (a)
               
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               An upset shall constitute an affirmative defense to an action brought for noncompliance
               with categorical pretreatment standards if the requirements of paragraph (b), below,
               are met.
               
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               (b)
               
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               A user wishes to establish the affirmative defense of upset shall demonstrate, through
               properly signed, contemporaneous operating logs, or other relevant evidence that:
               
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               (1)
               
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               An upset occurred and the user can identify the cause(s) of the upset;
               
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               (2)
               
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               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
               
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               (3)
               
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               The user has submitted the following information to the executive director within
               24 hours of becoming aware of the upset (if this information is provided orally, a
               written submission must be provided within five days):
               
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               (i)
               
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               A description of the indirect discharge and cause of noncompliance;
               
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               (ii)
               
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               The period of noncompliance, including exact dates and times or, if not corrected,
               the anticipated time the noncompliance is expected to continue; and
               
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               (iii)
               
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               Steps being taken and/or planned to reduce, eliminate, and prevent recurrence of the
               noncompliance.
               
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               (c)
               
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               In any enforcement proceeding, the user seeking to establish the occurrence of an
               upset shall have the burden of proof.
               
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               (d)
               
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               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.
               
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               (e)
               
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               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.
               
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               2.
               
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               <span class="ital">Prohibited discharge standards defense.</span> A user shall have an affirmative defense to an enforcement action brought against
               it for noncompliance with the general prohibitions in section 78-62.1(a) of this article
               or the specific prohibitions in subsections 78-62.1(b)(2), (3), (5) through (7), and
               (9) through (31) of this article 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:
               
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               (a)
               
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               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
               
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               (b)
               
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               No local limit exists, but the discharge did not change substantially in nature or
               constituents from the user's prior discharge when WSACC was regularly in compliance
               with its NPDES permit, and in the case of interference, was in compliance with applicable
               sludge use or disposal requirements.
               
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               3.
               
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               <span class="ital">Bypass.</span>
               
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               (a)
               
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               A user may allow any bypass to occur which does not cause pretreatment standards or
               requirements to be violated, but only if it also is for essential maintenance to assure
               efficient operation. These bypasses are not subject to the provision of paragraphs
               (b) and (c) of this section.
               
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               (b)
               
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               (1)
               
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               If a user knows in advance of the need for a bypass, it shall submit prior notice
               to the executive director at least ten days before the date of the bypass, if possible.
               
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               (2)
               
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               A user shall submit oral notice to the executive director of an unanticipated bypass
               that exceeds applicable pretreatment standards within 24 hours from the time it becomes
               aware of the bypass. A written submission shall also be provided within five days
               of this time the user becomes aware of the bypass. The written submission shall contain
               a description of the bypass and its cause; the duration of the bypass, including exact
               dates and times, and, if the bypass has not been corrected, the anticipated time it
               is expected to continue; and steps taken or planned to reduce, eliminate, and prevent
               reoccurrence of the bypass. The executive director may waive the written report on
               a case-by-case basis if the oral report has been received within 24 hours.
               
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               (c)
               
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               (1)
               
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               Bypass is prohibited, and the executive director may take an enforcement action against
               a user for a bypass, unless:
               
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               (i)
               
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               Bypass was unavoidable to prevent loss of life, personal injury, or severe property
               damage;
               
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               (ii)
               
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               There were no feasible alternatives to the bypass, such as the use of auxiliary treatment
               facilities, retention of untreated wastes, or maintenance during normal periods of
               equipment downtime. This condition is not satisfied if adequate back-up equipment
               should have been installed in the exercise of reasonable engineering judgment to prevent
               a bypass which occurred during normal periods of equipment downtime or preventive
               maintenance; and
               
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               (iii)
               
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               The user submitted notices as required under paragraph (b) of this section.
               
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               (2)
               
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               The executive director may approve an anticipated bypass, after considering its adverse
               effects, if the executive director determines that it will meet the three conditions
               listed in paragraph (c)(1) of this section.
               
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            <p class="historynote0">
               (Ord. No. 2013-19, Â§ 11, 8-19-13)
               
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