10-5-26-1: OPERATING UPSETS:

   A.   Notice To City; Requirements: Any user that experiences an upset in operations which places the user in a temporary state of noncompliance with this chapter shall inform the City thereof within twenty four (24) hours of first awareness of the commencement of the upset. Where such information is given orally, a written follow up report thereof shall be filed by the user with the City within five (5) days. An upset shall constitute an affirmative defense to an action brought for noncompliance with applicable pretreatment standards if certain conditions are met. The user that 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 of the upset;

      2.   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

      3.   The user has submitted the following information to the City within twenty four (24) hours of becoming aware of the upset (if this information is provided orally, a written submission must be provided within 5 days):

         a.   Description of the upset, the cause thereof and the upset's impact on the user's compliance status.

         b.   Duration of noncompliance and, if the noncompliance continues, the time by which compliance is reasonably expected to occur.

         c.   All steps taken or to be taken to reduce, eliminate and prevent recurrence of such an upset or other conditions of noncompliance.

   B.   Burden Of Proof: In any enforcement proceeding, the user seeking to establish the occurrence of an upset shall have the burden of proof. Users will have the opportunity for a judicial determination on any claim of upset only in an enforcement action brought for noncompliance with applicable pretreatment standards.

   C.   Control Of Discharge: Users shall control production of all discharges to the extent necessary to maintain compliance with applicable 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. (1952 Code § 8-14-26.01)