[Code of Federal Regulations]
[Title 40, Volume 25]
[Revised as of July 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR403.16]

[Page 46]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 403--GENERAL PRETREAT- MENT REGULATIONS FOR EXISTING AND NEW SOURCES OF POLLUTION--Table of Contents
 
Sec. 403.16  Upset provision.

    (a) Definition. 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 Industrial 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) Effect of an upset. An Upset shall constitute an affirmative 
defense to an action brought for noncompliance with categorical 
Pretreatment Standards if the requirements of paragraph (c) are met.
    (c) Conditions necessary for a demonstration of upset. An Industrial 
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 Industrial User 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;
    (3) The Industrial User has submitted the following information to 
the POTW and Control Authority within 24 hours of becoming aware of the 
Upset (if this information is provided orally, a written submission must 
be provided within five days):
    (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 and/or planned to reduce, eliminate and 
prevent recurrence of the noncompliance.
    (d) Burden of proof. In any enforcement proceeding the Industrial 
User seeking to establish the occurrence of an Upset shall have the 
burden of proof.
    (e) Reviewability of agency consideration of claims of upset. In the 
usual exercise of prosecutorial discretion, Agency enforcement personnel 
should review any claims that non-compliance was caused by an Upset. No 
determinations made in the course of the review 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.
    (f) User responsibility in case of upset. The Industrial 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 the situation where, among other things, the primary source of power 
of the treatment facility is reduced, lost or fails.

[46 FR 9439, Jan. 28, 1981, as amended at 53 FR 40615, Oct. 17, 1988]