327 IAC 5-16-6 Upset

Sec. 6. (a) As used in this section, "upset" means an exceptional incident in which there is unintentional and temporary noncompliance with any pretreatment standards or requirements in 327 IAC 5-2 because of factors beyond the reasonable control of the industrial user. An upset does not include: (1) noncompliance to the extent caused by operational error; (2) improperly designed treatment facilities; (3) inadequate treatment facilities; (4) lack of preventive maintenance; or (5) careless or improper operation. (b) An upset shall constitute an affirmative defense to an action brought for noncompliance with the pretreatment standards or requirements if the requirements of subsection (c) are met. (c) In order to establish an affirmative defense of upset, an industrial user must provide properly signed, contemporaneous operating logs, or other relevant evidence of the following facts: (1) An upset occurred and the industrial user can identify the cause of the upset. (2) The facility was being operated at the time in a prudent and workmanlike manner and in compliance with applicable operation and maintenance procedures. (3) The industrial user submitted a report, to the POTW and control authority, within twenty-four (24) hours of becoming aware of the upset or within five (5) days, if an initial verbal report of the information is given to the required authority, and the report contained the following information: (A) A description of the indirect discharge and cause of noncompliance. (B) The period of noncompliance, including exact dates and times or the anticipated time the noncompliance is expected to continue if it is not corrected. (C) Steps being taken or planned for reducing, eliminating, and preventing recurrence of the noncompliance. (d) In any enforcement proceeding, an industrial user seeking to establish the occurrence of an upset shall have the burden of proof. (e) In the usual exercise of prosecutorial discretion, the control authority may review any claims that noncompliance was caused by an upset. No determinations made in the course of the review constitute the commissioner's final 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 the pretreatment standards or requirements. (f) An industrial user shall control production or all discharges to the extent necessary to maintain compliance with the pretreatment standards or requirements 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 when, among other things, the primary source of power of the treatment facility is reduced, is lost, or has failed.