(1) An upset does not constitute noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.
    (2) 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 subsection (3), below, are met.
    (3) Conditions necessary for a demonstration of upset. An industrial user who wishes to establish the affirmative defense of an upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence that:
    (a) An upset occurred and the industrial user can identify the cause of the upset;
    (b) The industrial user’s facility was, at the time of the upset, being properly operated; and,
    (c) The industrial user has orally submitted the following information to the control authority within 24 hours of becoming aware of the upset, with a written submission to be provided within 5 days:
    1. A description of the discharge and cause of noncompliance;
    2. The period of noncompliance, including exact dates and times or, if not corrected, the anticipated time the noncompliance is expected to continue; and,
    3. Steps being taken or planned to reduce, eliminate and prevent recurrence of the noncompliance.
    (4) Industrial user responsibility in case of an 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.
Rulemaking Authority 403.061(7), (31), 403.0885 FS. Law Implemented 403.0885, 403.08851 FS. History-New 11-29-94, Amended 1-8-97.