AG 2013 08 19 - Laserfiche WebLink

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SECTION 11 - AFFIRMA'T'IVE DEFENSES TO DISCHARGE VIOLATIONS 11.1 Upset (a) 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. (b) A user 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 uses can identify the cause(s) 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 Executive Director within twenty- four (24) hours of becoming aware of the upset (if this information is provided orally, a written submission must be provided within five (5) days): (i) A description ofthe 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; and (iii) Steps being taken and/or planned to reduce, eliminate, and prevent recurrence of the noncompliance. (c) In any enforcement proceeding, the user seeking to establish the occurrence of an upset shall have the burden of proof. (d) 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. (e) 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. 11.2 Prohibited Discharge Standards Defense A user shall have an affirmative defense to an enforcement action brought against it for noncompliance with the general prohibitions in section 2.1(a) of this ordinance or the specific prohibitions in sections 2.1(b)(2), (3), (5) through (7), and (9) through (3 1) of this ordinance 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: (a) 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 (b) 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. 55 Attachment number 8 H -3 Page 310