R 323.2315 Upset provision.

Rule 15. (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.