<div class="chunk-title">Sec. 26-226. - Upset.</div>
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            <p class="incr0">
               (a)
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            <p class="content1">
               For the purpose of this section, "upset" means an exceptional incident in which there
               is unintentional and temporary noncompliance with 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 preventative maintenance or careless or improper
               operation.
               </p>
            		
            <p class="incr0">
               (b)
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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 subsection (c) below,
               are met.
               </p>
            		
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               (c)
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               A user who wishes to establish the affirmative defense of upset shall demonstrate,
               through properly signed, contemporaneous operation logs, or other relevant evidence
               that:
               </p>
            		
            <p class="incr1">
               (1)
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               An upset occurred and the user can identify the cause(s) of the upset;
               </p>
            		
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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
               </p>
            		
            <p class="incr1">
               (3)
               </p>
            		
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               The user has submitted the following information to the POTW 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):
               </p>
            		
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               a.
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               A description of the indirect discharge and cause of noncompliance;
               </p>
            		
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               b.
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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
               </p>
            		
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               c.
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               Steps being taken and/or planned to reduce, eliminate and prevent recurrence of the
               noncompliance.
               </p>
            		
            <p class="incr0">
               (d)
               </p>
            		
            <p class="content1">
               In any enforcement proceeding, the user seeking to establish the occurrence of an
               upset shall have the burden of proof.
               </p>
            		
            <p class="incr0">
               (e)
               </p>
            		
            <p class="content1">
               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.
               </p>
            		
            <p class="incr0">
               (f)
               </p>
            		
            <p class="content1">
               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.
               </p>
            		
            <p class="historynote0">
               (Ord. of 9-26-94, Â§ 10.1; Ord. of 11-26-12, Â§ 43)
               </p></div>