Paso Robles Municipal Code Art. XIII Affirmative Defense to Discharge Violations

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

B. An upset shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards if the requirements of subsection C. of this section are met.

C. 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. An upset occurred and the user can identify the cause(s) of the upset;

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

3. The user has submitted the following information to the director within twenty-four hours of becoming aware of the upset (or if this information is initially provided orally, a written submission is provided within five calendar days):

a. A description of the indirect discharge and cause of noncompliance;

b. The period of noncompliance, including exact dates and times or, if not corrected, the expected duration of noncompliance; and

c. Steps being taken and/or planned to reduce, eliminate, and prevent recurrence of the noncompliance.

D. In any enforcement proceeding, the user claiming the occurrence of an upset shall have the burden of proof.

E. Users shall have the opportunity for a judicial determination on any claim of upset only in an enforcement action brought for noncompliance with categorical pretreatment standards.

F. 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 for the treatment facility is reduced, lost, or fails.

(Ord. No. 1105 N.S., § 2 (Exh. A), 12-1-2020)

A user may claim an affirmative defense to an enforcement action brought against it for noncompliance with the provisions of Section 14.10.040 if it can demonstrate 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:

1. A local limit exists for each pollutant discharged and the user's discharge complied with each limit immediately prior to, and during, the pass through or interference; or

2. No local limit exists, but the discharge did not change substantially in nature or constituents from the user's prior discharge when the city was regularly in compliance with its NPDES permit, and in the case of interference, the interference complied with applicable sludge use or disposal requirements.

(Ord. No. 1105 N.S., § 2 (Exh. A), 12-1-2020)