Section 323.2315. Upset provision.

(1) An upset shall constitute an affirmative defense  to   an action brought for noncompliance with categorical  pretreatment  standards if the provisions of subrule

(2)   of this rule are met.

(2)   A nondomestic user who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs or other relevant  evidence,  that  all  of  the following provisions apply:

(a)   An upset occurred and the nondomestic user can identify the cause or causes of the upset.

(b)   The facility was at the time being operated in a prudent and workmanlike manner  and  in  compliance with  applicable operation  and maintenance procedures.

(c)   The nondomestic user has submitted the following information to the publicly owned treatment works within 24 hours of becoming aware of  the upset:

(i)   A description of the indirect discharge and cause of noncompliance.

(ii)      The period of noncompliance, including exact dates and times or, if not corrected, the anticipated  time the noncompliance is expected to continue.

(iii)   Steps being taken or planned to reduce, eliminate, and prevent a recurrence of the noncompliance.

If this information is provided orally,   a    written     submission      shall   be provided within 5 days of becoming aware of the upset.

(3)   In any enforcement proceeding, the nondomestic user seeking toestablish the occurrence of an upset shall have the burden of proof.

(4)      In the usual exercise of prosecutorial discretion, agency enforcement personnel should review any claims that noncompliance was caused by an upset. A determination made in the course of the review does not constitute final agency action subject  to  judicial  review.    Industrial  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.

(5)   The nondomestic user shall control production or 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 a situation where, among other things, the primary source of power of the treatment facility is reduced, lost, or fails.

History: 1995 AACS.