Spokane Municipal Code

Title 13 Public Utilities and Services

Chapter 13.03A Pretreatment

Article XII. Affirmative Defenses to Discharge Violations

Section 13.03A.1201 Upset [12.1]

1. For the purposes of this section, “upset” means an exceptional incident in which there is unintentional and temporary non-compliance with applicable pretreatment standards because of factors beyond the reasonable control of the user. An upset does not include non-compliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.

2. An upset shall constitute an affirmative defense to punitive actions in response to non-compliance with applicable pretreatment standards if the requirements of subsection (C) of this section are met.

3. A user who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence that:

1. 1. an upset occurred and the user can identify the cause(s) of the upset;

1. 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

1. 3. the user has submitted the following information to the Plant Manager within twenty four hours of becoming aware of the upset. If this information is provided orally, a written submission must be provided within five days:

1. 1. 1. A description of the discharge and cause of non-compliance.

1. 1. 2. The period of non-compliance, including exact dates and times or, if not corrected, the anticipated time the non-compliance is expected to continue; and

1. 1. 3. Steps being taken and/or planned to reduce, eliminate, and prevent recurrence of the non-compliance.

4. In any enforcement proceeding, the user seeking to establish the occurrence of an upset shall have the burden of proof.

5. Users shall have the opportunity for a judicial determination on any claim of upset only in an enforcement action brought for non-compliance with applicable pretreatment standards unless otherwise required by law. Such opportunity may be conditioned on other requirements such as exhaustion of administrative remedies or other applicable conditions.

6. 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.

NOTE: Bracketed enumerations reference the numbering in the EPA Region 10 Model Ordinance of March 27, 2012.

Date Passed: Monday, November 9, 2020

Effective Date: Wednesday, December 16, 2020

ORD C35961 Section 73