[Code of Federal Regulations]

[Title 40, Volume 28]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 40CFR403.16]



[Page 50-51]

 

                   TITLE 40--PROTECTION OF ENVIRONMENT

 

         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)

 

PART 403_GENERAL PRETREATMENT 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



[[Page 51]]



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]